SUZANNAH LINTON
CAMBODIA, EAST TIMOR AND SIERRA LEONE: EXPERIMENTS
IN INTERNATIONAL JUSTICE
In Cambodia, East Timor and Sierra Leone, the United Nations has been
involved in efforts to create a new species of tribunal for the prosecution of
international crimes. These are the “internationalised domestic tribunals”,
grafted onto the judicial structure of a nation where massive violations
of human rights and humanitarian law have taken place, or created as a
treaty based organ, separate from that structure. In a radical move away
from the earlier prevailing wisdom that the non-inclusion in any position of nationals of the country most affected would preserve impartiality,
objectivity and neutrality, mixed panels of international and local judges
have jurisdiction to try crimes such as genocide, crimes against humanity
and war crimes. The cases are brought by prosecuting agencies that are
also mixed in composition.
This latest of transitional justice options is one that came into being
with the 1999 round of United Nations-Cambodia negotiations on a
tribunal for Cambodia, with East Timor being the first to implement such
a scheme in 2000 (Kosovo’s planned War and Ethnic Crimes Court project
has been abandoned, but international judges and prosecutors continue
to work within the courts of Kosovo on war and ethnically motivated
crimes). In each of Cambodia, East Timor and Sierra Leone, there have
been persistent calls for the establishment of ad hoc tribunals along the
lines of those created for Rwanda and the former Yugoslavia. The internationalised tribunals are a half-way house, a hybrid containing elements of
domestic prosecutions and an international process.
For internationalised tribunals to be correctly understood, they must
first be recognised as being one of a range of transitional justice options,
from those of a judicial nature to non-judicial truth seeking mechanisms,
available to nations seeking to address a legacy of violence. A single initiative on its own is unlikely to bring about a peaceful, stable and restored
nation. The answer may lie in a combination of options.
The author practices international law and has worked in many countries, including
East Timor. LLB (Hons) Bristol (1989); LLM Essex (1997). This paper reflects developments up to 30 June 2001. The views expressed herein are those of the author and do not
necessarily reflect those of the institutions that she is or has been associated with.
Criminal Law Forum 12: 185–246, 2001.
© 2001 Kluwer Academic Publishers. Printed in the Netherlands.
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SUZANNAH LINTON
There is much that is positive in the concept that international and
local judges can sit together as panels adjudicating international crimes, as
part of the judicial system of the nation which has suffered the atrocities.
With many pre-existing factors presumed and others taken for granted,
the concept envisages international standards applying throughout, and
full respect for due process and the rights of the accused, while at the
same time honouring a State’s need to retain sovereignty through adequate
involvement in the process. Having international involvement from judges
and prosecutors with particular experience in this field brings in muchneeded objective expertise and minimises the risks of partiality and lack of
independence that arise from local participation in the process, particularly
where those local participants form a part of the victim population. With
adequate dissemination of information and public trials, the affected public
has a sense of participation in all aspects of the proceedings.
This paper examines the internationalised domestic tribunals in
Cambodia, East Timor and Sierra Leone. Cambodia is believed to have
been the model for the latter two.1 Designing a scheme that is realistic and
workable, suited to the needs, wishes and capacities of the host nation,
and at the same time that meets international standards of due process,
has proven a considerable challenge. This paper finds that enormous
difficulties caused by problems in design and implementation confront
such ventures. Although they are not yet functioning, examination of
the Cambodian Extraordinary Chambers and Sierra Leone Special Court
projects is important. Cambodia’s, in particular, is a highly compromised
scheme, which places the international community in the difficult position
of deciding whether to involve itself. Either way, there are far reaching,
possibly damaging, implications for international justice.
If internationalised domestic prosecutions are to be a new way forward
for international justice, it is important that there is particularly close
examination of the already functioning Serious Crimes project in East
Timor. A year has now passed since it came into existence, and the time
would seem right for a critical, but constructive examination, for there are
many lessons to be learnt, most immediately for Cambodia and Sierra
Leone. Sections 2.1–2.5 look beyond the veneer of a functioning criminal justice system and attempt to understand the challenges of bringing
1 See Press Briefing by Deputy Legal Adviser, UN Mission in East Timor, Press Briefing
(19 April 2000) <http://www.un.org/peace/etimor/DB/DB20000419.htm>: “The credibility of these trials would be insured because the model under consideration for Cambodia
was being used in East Timor.” According to Minister Sok An, who introduced the Law
on Extraordinary Chambers to Cambodia’s National Assembly on 29 December 2000 and
2 January 2001, the Cambodia model is the basis for the Sierra Leone Special Court, see
<http://www.camnet.com.kh/ocm/government60.htm>.
EXPERIMENTS IN INTERNATIONAL JUSTICE
187
justice to East Timor. This does not detract from the fact that, in the face of
tremendous challenges, the United Nations has made great progress in its
efforts to rebuild East Timor and prepare it for statehood. Certainly, Rome
was not built in a day, but unless lessons are learned from the Serious
Crimes project, the internationalised domestic tribunal will fail to fulfil its
potential and do great injustice.
1. CAMBODIA
The extent of the atrocities committed in Cambodia by the Khmer Rouge
during the reign of Democratic Kampuchea between 17 April 1975 and
8 January 1979 needs no introduction.2 Discussions about what to do
to bring those responsible to justice have been slow and complicated
by international and domestic political considerations. In the aftermath
of the overthrow of the Pol Pot regime by invading Vietnamese forces
in 1979, the United Nations continued to recognise the government in
exile of Democratic Kampuchea as the lawful representative of the people
of Cambodia, permitting it to occupy Cambodia’s seat at the General
Assembly. As for domestic considerations, an ambiguous governmental
policy which both held show trials (of Khmer Rouge leaders Pol Pot and
Ieng Sary)3 and then granted amnesties and immunity from prosecution
in the name of national reconciliation, has contributed to the impunity
enjoyed by those responsible for the atrocities.
1.1. Negotiating the Extraordinary Chambers Regime
After nearly twenty years of international paralysis in the face of impunity,
on 21 June 1997 the Cambodian government sought the assistance of the
2 For further reading, see B EN K IERNAN , T HE P OL P OT R EGIME (1996); Ben
Kiernan, The Cambodian genocide: Issues and responses, in G ENOCIDE : C ONCEP TUAL AND H ISTORICAL D IMENSIONS 191 (George J. Andreopoulos, ed., 1994); DAVID
P. C HANDLER , T HE T RAGEDY OF C AMBODIAN H ISTORY: P OLITICS , WAR , AND
R EVOLUTION SINCE 1945 1991; B EN K IERNAN , H OW P OL P OT C AME TO P OWER :
A H ISTORY OF C OMMUNISM IN K AMPUCHEA 1985; NAYAN C HANDA , B ROTHER
E NEMY: T HE WAR A FTER THE WAR 1986. Also, Hurst Hannum, International Law
and Cambodian Genocide: The Sounds of Silence, 11 H UMAN RTS Q. 82 (1989);
Kathryn Railsback, A Genocide Convention Action Against the Khmer Rouge: Preventing
a Resurgence of the Killing Fields, 5 C ONN . J. I NT ’ L L. 457, 465 (1990).
3 Pol Pot and Ieng Sary were tried in absentia in 1979; a jury of ten people found them
guilty of the deaths of three million people, destroying religion, the economic structure,
culture, and family and social relationships. For the proceedings of the trial, see: G ENO CIDE IN C AMBODIA , D OCUMENTS FROM THE T RIAL OF P OL P OT AND I ENG S ARY
(Howard J. De Nike, John Quigley & Kenneth J. Robinson, eds., 2000).
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SUZANNAH LINTON
United Nations in dealing with the atrocities committed during the rule of
the Khmer Rouge, which began on 17 April 1975 and ended on 8 January
1979. A United Nations Group of Experts, headed by Sir Ninian Stephen
of Australia, was mandated to evaluate existing evidence with a view to
determining the nature of the crimes committed, to assess the feasibility of
apprehending the perpetrators, and to explore the legal options for bringing
them to justice before an international or national jurisdiction.4
Having considered the various options, which included a purely
domestic prosecution, as well as an internationalised one, the Group of
Experts was emphatic that the only satisfactory option for Cambodia
was to create an international tribunal under the control of the United
Nations.5 The Group of Experts noted the prevalence of corruption and
political influence over the judiciary, and concluded that Cambodia’s
system falls short of international standards of criminal justice established
in the International Covenant of Civil and Political Rights.6 The Group
of Experts even declined recommending a mixed Cambodian-foreign
judiciary domestic court controlled by internationals:
based on our assessment of the situation in Cambodia, that even such a process would
be subject to manipulation by political forces in Cambodia. The possibilities for undue
influence are manifold, including the content of the organic statute of the court and its
subsequent implementation, and the role of Cambodians in positions on the bench and
in prosecutorial, defence and investigative staffs. A Cambodian court and prosecutorial
system, even with significant international personnel, would still need the Government’s
permission to undertake most of its tasks, and could lose independence at crucial
junctures.7
According to the Group of Experts, “the Cambodian judiciary presently
lacks three key criteria for a fair and effective judiciary: a trained cadre of
judges, lawyers and investigators; adequate infrastructure; and a culture of
respect for the process”.8
4 G.A. Res. 52/135.
5 “Report of the Group of Experts for Cambodia established pursuant to General
Assembly resolution 52/135” (“Group of Experts Report”), transmitted by the SecretaryGeneral along with his own report (“Secretary-General Report”), U.N. Doc. A/53/850,
S/199/231.
6 (1976) 999 U.N.T.S. 171. See Group of Experts Report, ibid., 5, para. 129; see also
“Kingdom of Cambodia, No Solution to Impunity: the case of Ta Mok”, Amnesty International, 22 April 1999: “Amnesty International has seen many instances of unfair trial in
the country since the adoption of the new constitution in 1993. Basic safeguards to ensure
fair procedures are simply non-existent in most cases, and ignored in others. At present, it
is almost impossible to obtain a fair trial in Cambodia’s courts, even on common criminal
charges, with no political elements involved.”
7 Group of Experts Report, ibid., para. 137.
8 Ibid., para. 126.
EXPERIMENTS IN INTERNATIONAL JUSTICE
189
Cambodia’s government did not agree with the Group of Experts’
recommendations for the creation of an international tribunal:
[T]he Government of Cambodia, in a letter addressed to [the Secretary-General] dated
3 March 1999, cautioned that any decision to bring Khmer Rouge leaders to justice
must take account of Cambodia’s need for peace and national reconciliation, and that, if
improperly conducted, the trials of Khmer Rouge leaders would create panic among other
former Khmer Rouge officers and rank and file and lead to a renewed guerrilla war . . .
[T]he Cambodian courts were fully competent to conduct any such trial. [The Minister for
Foreign Affairs and International Cooperation of Cambodia] recalled that the criminals are
Cambodian, the victims were Cambodians and the crimes were committed in Cambodia.9
The United Nations and Cambodia negotiated these matters throughout
1999 and 2000. Cambodia insisted upon retaining the power to appoint
judges, that Cambodian judges would be in the majority, and that the
chambers be integrated as part of the Cambodian legal structure. It also
raised the spectre of renewed civil war arising as a result of an overly
aggressive prosecution. In this context, it should be noted that the Group of
Experts had “significantly” discounted the risk of renewed warfare arising
from prosecutions.10 The United Nations, on the other hand, stressed the
importance of ensuring that the process that brings those most responsible to justice is one that meets international standards of justice, fairness
and due process of law, and has supported the view that this could only
be achieved through an international tribunal.11 It sought guarantees that
those indicted would in fact be arrested, a prohibition on amnesties or
pardons, the appointment of independent, international prosecutors, and
the appointment of a majority of foreign judges.
Faced with Cambodia’s refusal to accept an international tribunal, the
United Nations eventually agreed to the establishment of a tribunal under
Cambodian law controlled by Cambodians, but with international participation. The resulting compromise involves the establishment of special
chambers within the Cambodian court structure, with both international
and Cambodian participation on the bench and in the prosecution. On 2
January 2001, Cambodia’s National Assembly approved the Law on the
Establishment of Extraordinary Chambers in The Courts of Cambodia For
the Prosecution of Crimes Committed During The Period of Democratic
Cambodia (“Law on Extraordinary Chambers”).12 The Extraordinary
9 Secretary-General’s Report, supra note 5, para. 7.
10 Group of Experts Report, supra note 5, para. 108.
11 Secretary-General’s Report, supra note 5, para. 10.
12 Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia
for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea,
adopted by the National Assembly of the Kingdom of Cambodia on 2 January 2001,
available in English at <http://www.derechos.org/human-rights/seasia/doc.krlaw.html>.
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SUZANNAH LINTON
Chambers will be three tiered (Trial, Appeal and Supreme courts), with
Cambodian judges forming the majority at each level. There are to be
two Co-Prosecutors and two Co-Investigating Judges. The subject matter
jurisdiction is to cover genocide, crimes against humanity, grave breaches
of the Geneva Conventions,13 violations of the 1954 Hague Convention
for Protection of Cultural Property in the Event of Armed Conflict14 and
crimes against internationally protected persons pursuant to the Vienna
Convention on Diplomatic Relations of 1961.15 Homicide, torture and
religious persecution can be prosecuted under the 1956 Cambodian Penal
Code.
Criminal proceedings under the Law on Extraordinary Chambers are
restricted to senior leaders of Democratic Kampuchea and those most
responsible for the atrocities, and are tied to the 1975–1979 period. There
is therefore not to be a massive prosecution of low-level Khmer Rouge
cadre. Funding is to be borne by Cambodia and the United Nations
(through a specially created trust fund comprising voluntary contributions), with the assistance of States contributing staff to the United Nations
and other voluntary funds contributed by foreign governments, international institutions, NGOs and private donors. The Law on Extraordinary
Chambers has since been approved by the Cambodian Constitutional
Council subject to an amendment prohibiting the use of the death penalty;
it will come into force upon approval by King Sihanouk.16
United Nations support for the venture remains uncertain. The Law on
Extraordinary Chambers was passed despite its objections on key issues,
and is not in accordance with several aspects of the draft Memorandum
of Understanding agreed in July 2000, to be signed after the passing and
adoption of the Law on Extraordinary Chambers.17 This draft Memor13 Geneva Convention for the Amelioration of the Condition of the Wounded and the Sick
in Armed Forces in the Field (1951) 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea
(1951) 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War
(1951) 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons
in Time of War (1951) 75 U.N.T.S. 287.
14 Convention for the Protection of Cultural Property in the Event of Armed Conflict
(1956) 249 U.N.T.S. 240.
15 Vienna Convention on Diplomatic Relations (1961) 500 UNTS 95.
16 See Khmer Rouge Trial Law Given Go-Ahead, CNN Asia (February 12, 2001), available at <http://asia.cnn.com/2001/WORLD/asiapcf/southeast/02/12/cambodia. tribunal/
htm>.
17 Tribunal Memorandum of Understanding Between the United Nations and the Royal
Government of Cambodia, P HNOM P ENH P OST , No. 9/22, 27 October–9 November 2000,
available at <http://www.yale.edu/cgp/tribunal/mou_v3.htm>. See Cambodia Ignored
UN Request in Passing Tribunal Law, T IMES OF I NDIA O NLINE , 19 January 2001; Colum
EXPERIMENTS IN INTERNATIONAL JUSTICE
191
andum of Understanding set out the blueprint for an internationalised
domestic tribunal, and the modalities for cooperation between Cambodia
and the United Nations. Despite the United Nations’ unhappiness with
certain aspects, which do indeed differ from the agreement reached in the
draft Memorandum of Understanding, the scheme follows closely the form
of tribunal contemplated in that document. The key concerns of the United
Nations centre on who should be prosecuted and the role of amnesties that
have been given to convicted Khmer Rouge leaders.
1.2. Structure
Under Cambodia’s Law on Extraordinary Chambers, all judges, domestic
and international, are ultimately selected by Cambodia’s Supreme Council
of the Magistracy, said to be strongly linked to the ruling Cambodian
People’s Party.18 It also selects the President of each of the chambers, who
is to be Cambodian. The international judges are in principle to be nominated by the Secretary-General of the United Nations. Although the Draft
Tribunal Memorandum of Understanding limited the right of nomination
of international judges to the Secretary-General alone, article 46 of the
Law on Extraordinary Chambers makes limited provision for the Supreme
Council of the Magistracy to appoint judges and prosecutors proposed
by governments of member states of the United Nations or other foreign
legal personalities, and in case of last resort, it provides that Cambodians
can be appointed to take the place of foreign judges and prosecutors.
Thus, should the United Nations withdraw from the process, the enterprise
could continue with all-Cambodian personnel, with international personnel
seconded directly by states or with international experts of Cambodia’s
choice, entirely bypassing the United Nations.
The Extraordinary Chambers will have three tiers, mirroring the structure of Cambodian courts. The Trial Court, which sits as a court of first
instance, will be composed of three Cambodian judges and two international judges. The Appeal Court, hearing appeals from accused persons,
victims, or by the Co-Prosecutors on grounds of errors of fact or law, is
to be composed of four Cambodian judges and three international judges.
The Supreme Court is to decide appeals on issues of fact and law against
the decision of the Appeal Court. It will be composed of five Cambodian
judges and four international judges.
One of the major compromises reached, with United States mediation, has been the adoption of a voting formula known as the “Super
Lynch, UN Warns Cambodia on War Crimes Tribunal, WASHINGTON P OST 3 February
2001.
18 H UMAN R IGHTS WATCH , W ORLD R EPORT 2001, Cambodia.
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SUZANNAH LINTON
Majority”, applicable to all three tiers of the Extraordinary Chambers.
Where unanimity cannot be achieved, a decision on innocence or guilt
can be made on the basis of a qualified majority. For example, the Trial
Chambers are composed of five judges, three Cambodians and two internationals. A decision can only be reached with the affirmative vote of at
least four judges. The effect of this is that while the Cambodian judges
are in a majority, no decision can be made unless at least one international
judge agrees.
A Cambodian and an international judge are to be appointed as CoInvestigating Judges. They are to be jointly responsible for investigations
and are equal in status. The Co-Investigating Judges are to conduct investigations on the basis of information received from unlimited sources and
can question suspects, victims and witnesses, and collect evidence in
accordance with existing procedure, but may seek guidance from “procedural rules established at the international level”. The investigating judge
is a feature of the Cambodian Code of Criminal Procedure, but it is
not constitutionally rooted, as are the judiciary and prosecution. There
have been calls for the abolition of this office, said to be an impediment to the proper administration of justice in Cambodia, contributing
to systemic dysfunction and miscarriages of justice, as well as hindering
police investigations into crimes and reducing the effectiveness of the
prosecutor.19
Where there is disagreement between the Co-Investigating Judges,
investigations should proceed unless a formal request is made by one of the
two within thirty days to have the dispute resolved by a Pre-Trial Chamber.
It appears that the judges of the Pre-Trial Chamber are to be chosen in
addition to those of the Trial, Appeal and Supreme courts.20 Thus, five
additional judges are to be appointed just to resolve disputes between international and Cambodian officials (they will also resolve disputes between
the international and Cambodian Co-Prosecutors). A decision of the PreTrial Chamber requires the affirmative vote of at least four judges; where
there is no majority decision, the prosecution shall continue. There is no
appeal from such a decision.
19 See Statement of Participants of a Workshop on the Reform of Administration
of Justice Relating to Police in Cambodia organised by the Cambodian Defenders
Project/IHRLG (CDP), at <http://www.c-r.org/acc_cam/intro.htm>.
20 The Law on Extraordinary Chambers, art. 20, provides: “The difference shall be
settled forthwith by a Pre-Trial Chamber of five judges, three appointed by the Supreme
Council of the Magistracy, with one as President, and two appointed by the Supreme
Council of the Magistracy upon nomination by the Secretary-General of the United
Nations. Article 10 shall apply to the judges.” Supra note 12.
EXPERIMENTS IN INTERNATIONAL JUSTICE
193
A Cambodian and an international jurist will be appointed to be
Co-Prosecutors, jointly responsible for the preparation and issuing of
indictments by the Extraordinary Chambers. Although article 16 makes
it clear that there are only two Co-Prosecutors with joint overall responsibility, the language of articles 17 and 21 strongly suggests that there will
be Co-Prosecutors at the Trial, Appeal and Supreme Court levels, and that
the Co-Prosecutors appearing before the Supreme Court have senior rank
to those appearing before the Trial and Appeal Courts.21 In other words,
these provisions suggest there will in fact be six Co-Prosecutors.
The Co-Prosecutors are to act in accordance with existing Cambodian
procedure, but may seek guidance from “procedural rules established at
the international level”. Disagreements between Co-Prosecutors are also
to be resolved by reference to the Pre-Trial Chamber, and decided in the
same way as discussed above in relation to the Co-Investigating Judges.
Here too, unless one of the Co-Prosecutors requests a decision from a PreTrial Chamber, the prosecution should continue. If the dispute is referred
to the Pre-Trial Chamber, absence of a weighted majority decision from
the Pre-Trial Chamber means the prosecution can proceed.
1.3. Substantive Law
Under article 3 of the Law on Extraordinary Chambers, the crimes of
homicide, torture and religious persecution may be tried as violations of
the 1956 Penal Code of Cambodia. The Penal Code’s statute of limitations
is extended for a further twenty years to enable these crimes to be investigated and tried. The Group of Experts, while recognising the validity of
prosecutions under domestic law, pointed out the inherent problems with
trials pursuant to Cambodian criminal law:
[Two] obstacles make the task complex. First, the sources on Cambodian law are extremely
scarce. The primary source of criminal law prior to the Khmer Rouge period is the 1956
Code Pénal et Lois Pénales, published by the Ministry of Justice of the Kingdom of
Cambodia, though it appears that no sources reliably and comprehensively update this law
through 1975. As for subsequent law that might govern the Khmer Rouge years, Democratic Kampuchea appears to have published none. No secondary sources on Cambodian
criminal law appear extant. Second, because Cambodia has seen at least six legal regimes
21 The Law on Extraordinary Chambers, art. 17, provides: “The Co-Prosecutors in the
trial court shall have the right to appeal the verdict of the Extraordinary Chamber of the trial
court. The Co-Prosecutors in the appeals court shall have the right to appeal the decision
of the Extraordinary Chamber of the appeals court.” According to article 21, “[t]he CoProsecutors under this law shall enjoy equal status and rank according to each level of the
Extraordinary Chambers”. Supra note 12.
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SUZANNAH LINTON
since independence, the extent to which the law of the prior regimes has remained in force
is simply undetermined in many cases.22
Article 4 is essentially derived from articles II and III of the 1948 Genocide Convention. Cambodia has been a party to the Genocide Convention
since it entered into force in 1951. There is little dispute that major crimes
were committed during the reign of the Khmer Rouge. However, difficulties will arise in meeting genocide’s additional legal requirements of
discrimination against a national, ethnic, racial or religious group, and the
requisite intent to destroy that group, whether in whole or in part. There
is evidence indicating the targeting of minority groups on the basis of
their ethnicity, such as the Cham, Chinese, Vietnamese and other minority
groups, and the Buddhist monkhood. However, the main targets of Khmer
Rouge criminality were those Cambodians who were not of their political
persuasion, and who formed the urban educated classes regarded by them
as being responsible for the subjugation of Khmer peasantry. Political,
economic and social groups were deliberately excluded from the ambit of
the crime of genocide set out in the Genocide Convention, suggesting that
the Khmer Rouge committed crimes against humanity rather than genocide
against their own people.23
The definition of crimes against humanity in article 5 closely follows
that of the Statute of the International Criminal Tribunal for Rwanda
(ICTR).24 The chapeau’s requirement that all crimes against humanity
must have a discriminatory or persecutory element is not one that reflects
contemporary customary international law.25 However, this does not necessarily offend the principle of legality because the definition is to the
advantage of the accused, given that it places an additional burden on the
prosecution.
Article 6 gives the Extraordinary Chambers jurisdiction over grave
breaches of the Geneva Conventions. For the grave breaches regime to
apply, there must be an international armed conflict between States parties
to the Geneva Conventions. During the period of Democratic Kampuchea,
22 Group of Experts Report, supra note 5, paras. 84, 85.
23 Prosecutor v. Jelisic (Case No. IT-95-10), Judgment, 14 December 1999, para. 69;
Prosecutor v. Rutaganda (Case No. ICTR-96-3-T), Judgment, 6 December 1999, paras.
55–57; Prosecutor v. Akayesu (Case No. ICTR-96-4-T), Judgment, 2 September 1998,
para. 516.
24 Statute of the International Criminal Tribunal for Rwanda, U.N. Doc S/RES/955,
annex.
25 Prosecutor v. Tadic (Case No. IT-94-1-A), Decision, 15 July 1999, para. 292: “. . .
customary international law, as it results from the gradual development of international
instruments and national case-law into general rules, does not presuppose a discriminatory
or persecutory intent for all crimes against humanity”.
EXPERIMENTS IN INTERNATIONAL JUSTICE
195
the Khmer Rouge was engaged in hostilities with its neighbours, namely
Vietnam, Laos and Thailand. All were parties to the Geneva Conventions
at the time,26 although none had ratified the 1977 Additional Protocols.
If the hostilities meet the threshold required for an armed conflict,27 the
Geneva Conventions and their grave breaches regime, apply to the situation. However, as the Group of Experts noted, this aspect of Khmer Rouge
activity constituted only a small portion of their human rights abuses.28
Atrocities committed against Cambodians during the applicability of the
Geneva Conventions would have to be linked to the international armed
conflict in order to qualify as grave breaches. This would apply to
Cambodians of Vietnamese descent during the struggle with Vietnam, and
to Vietnamese in Vietnam, as well as to attacks on Thai villages by Khmer
Rouge troops during repeated border clashes with Thailand.29
Given that the overwhelming bulk of Khmer Rouge atrocities were
committed against Khmer civilians, the issue of violations of common
article 3 of the Geneva Conventions and violations of the laws or customs
of war in an internal armed conflict becomes a key issue. However,
common article 3 is not part of the grave breaches regime30 and there is
no jurisdiction under the Law on Extraordinary Chambers to prosecute
other violations of the Geneva Conventions or violations of the laws or
customs of war. In any event, as the Group of Experts noted, violations of
common article 3 and other violations of the Geneva Conventions that are
not grave breaches do not appear to have been viewed as war crimes under
customary international law as at 1975.31
Finally, prosecutions under the Law on Extraordinary Chambers are
limited to senior leaders of Democratic Kampuchea and those most responsible for the atrocities of that era. It would thus appear that it is only acts by
26 Cambodia (8 December 1958), Vietnam (14 November 1953), Laos (29 October
1956), Thailand (29 December 1954).
27 Prosecutor v. Tadic (Case No. IT-94-1-AR72), Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, 2 October 1995 para. 72: “an armed conflict exists
whenever there is a resort to armed force between States or protracted armed violence
between governmental authorities and organised armed groups or between such groups
within a State”.
28 Group of Experts Report, supra note 5, para. 72.
29 Ibid., paras. 72–75.
30 Prosecutor v. Tadic, supra note 27. There are however dicta that atrocities committed
in internal armed conflicts can constitute grave breaches: see Prosecutor v. Tadic (Case No.
IT-94-1-AR7 2), Separate Opinion of Judge Abi-Saab, 2 October 1995, part IV; Prosecutor
v. Delalic et al. (Case No. IT-96-21-T), Judgment, 16 November 1998, para. 202. Also see
George Aldrich, Jurisdiction of the International Tribunal for the Former Yugoslavia, 90
A M . J. I NT ’ L L. 64 (1996), p. 68.
31 Group of Experts Report, supra note 5, para. 75.
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SUZANNAH LINTON
Cambodians in violation of the Geneva Conventions that can be charged.
This is exactly what the Group of Experts cautioned against:
[W]ar crimes prosecutions should not be limited to one side in a conflict. This principle
would mean that, if war crimes were included in the jurisdiction of a court for Cambodia,
it would have to include war crimes by persons from other States during the period of
Democratic Kampuchea. For the reasons discussed above, we believe this would divert the
attention of the court from the bulk of the atrocities, and we thus believe war crimes should
not be included.32
Cambodia acceded to the Cultural Property Convention, its attached
regulations and the 1954 First Hague Cultural Property Protocol on
October 12, 1961. These instruments provide for the protection of cultural
property in times of international armed conflict, with more limited protection in a non-international armed conflict (the provisions on “respect for
cultural property” contained in article 4 provide the minimum standard
of protection in any conflict). Much of Cambodias’s rich cultural heritage
was destroyed during the reign of the Khmer Rouge. Thus, by article 7,
Cambodia is taking the necessary steps to “prosecute and impose penal
or disciplinary sanctions upon those persons, of whatever nationality, who
commit or order to commit or order to be committed a breach of the present
Convention”.
This is the first time that violations of the Cultural Property Convention are being prosecuted on the basis of the treaty itself. Such acts are
more usually regarded as violations of the laws or customs of war, as
evidenced by the statutes of the International Criminal Court (ICC)33 and
the International Criminal Tribunal for the former Yugoslavia (ICTY).34
Attacks against cultural property in an international armed conflict can
also amount to an attack against a protected object and constitute a grave
breach of the Geneva Conventions, prosecutable under article 6 of the Law
on Extraordinary Chambers.
Crimes against internationally protected persons pursuant to the Vienna
Convention of 1961 on Diplomatic Relations were not widespread or
systematic. They are known to have occurred when local spouses of diplomatic personnel were removed from the French Embassy after the fall of
Phnom Penh and then murdered. However, the 1961 Convention does not
in fact contain penal provisions; these are contained in the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally
32 Ibid., para. 151.
33 Rome Statute of the International Criminal Court, U.N. Doc A/CONF.183/9.
34 Statute of the International Tribunal for the Former Yugoslavia, U.N. Doc S/RES/827,
annex.
EXPERIMENTS IN INTERNATIONAL JUSTICE
197
Protected Persons, Including Diplomatic Agents, to which Cambodia is
not a party.
Article 29 of the Law on Extraordinary Chambers declares that anyone
who planned, instigated, ordered, aided and abetted, or committed crimes
is individually criminally responsible for his actions. In this, the position or
rank of the person does not relieve such person of criminal responsibility,
nor does it mitigate punishment. Command responsibility is provided for,
in that crimes committed by a subordinate do not relieve the superior of
personal criminal responsibility if that person had effective command and
control or authority and control over the subordinate, and the superior
knew or had reason to know that the subordinate was about to commit
such acts or had done so and the superior failed to take the necessary and
reasonable measures to prevent such acts or to punish the perpetrators. This
includes the requirement that the superior must have “effective command
and control or authority and control” over the subordinate, wording drawn
from the Statute of the ICC.35 The fact that a person acted pursuant to an
order of the government of Democratic Kampuchea or of a superior does
not relieve him or her of individual criminal responsibility.
Surprisingly, the Law on Extraordinary Chambers makes no provision
concerning defences to crimes under its jurisdiction. Where both domestic
and international law form the legal basis for criminal prosecution, it would
seem to be only fair that this division is reflected in the defences that are
available to an accused. In accordance with the principle of legality, the
law to be applied must be that which was effective from 1975 to 1979.
Logically, defences to charges of violations of the 1956 Cambodian Penal
Code should be based on articles 89 to 104 of that code, which provides
a list of defences. These include insanity, youth, force majeure, superior
orders and self-defence.36 In the absence of any provision on defences
in the Law on Extraordinary Chambers, it is assumed that these are the
defences that apply not just to domestic crimes, but also to international
crimes. The latter is problematic, for an accused should be entitled to rely
on defences recognised as valid under international law at the relevant
time, particularly if they are more favourable to him or her.
35 The requirement that the superior has effective control over subordinates is a reflection
of the position in contemporary customary international law, as expounded in Prosecutor v.
Delalic et al., supra note 30, para. 378: “In order for the principle of superior responsibility
to be applicable, it is necessary that the superior have effective control over the persons
committing the underlying violations of international humanitarian law, in the sense of
having the material ability to prevent and punish the commission of these offences.” This
finding has been confirmed by the ICTY Appeals Chamber, Prosecutor v. Delalic et al.
(Case No. IT-96-21-A), Judgment, 20 February 2001.
36 Group of Experts Report, supra note 5, para. 89.
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SUZANNAH LINTON
Although Cambodia is a party to the International Covenant on Civil
and Political Rights, the Law on Extraordinary Chambers has no provisions enshrining the principle of non bis in idem (a person cannot be tried
for something for which he or she has already been convicted or acquitted).
This is relevant to the case of a former Khmer Rouge leader, Ieng Sary, who
was tried and convicted, albeit in controversial circumstances. A provision
along the lines of that employed in the ICC Statute would have directly
addressed the problem of “sham trials”.37
There are two current bars to prosecution of leaders of the Khmer
Rouge thought to be key targets for prosecution: pardons granted to those
convicted and amnesties granting immunity from prosecution given to
others who surrendered to the government. The United Nations is insistent
that there can be no bars to prosecution; this is one of its major concerns
about the Law on Extraordinary Chambers, “a determining factor when
[the United Nations] ultimately has to decide on its cooperation with
the Royal Government”.38 Its desired wording is that of article 9 of the
Draft Tribunal Memorandum of Understanding: “The Parties agree that
there shall be no amnesty for the crime of genocide, war crimes and
crimes against humanity. An amnesty granted to any person falling within
the jurisdiction of the chambers shall not be a bar to prosecution.” The
Law on Extraordinary Chambers has weakened this considerably. Article
40 provides: “The Royal Government of Cambodia shall not request
an amnesty or pardon for any persons who may be investigated for or
convicted of crimes referred to in Articles 3, 4, 5, 6, 7 and 8 of this law.”
This fails to address the fact that the King of Cambodia may still grant
amnesties pursuant to his constitutional powers and laws may be passed
to shield persons from being investigated or prosecuted under the Law on
Extraordinary Chambers. It also ignores the issue of someone who has
already been pardoned, and those who benefit from existing amnesties.
Cambodia’s current criminal procedure will apply to proceedings under
the Law on Extraordinary Chambers. This is said to offer insufficient
protection to accused persons in areas such as access to evidence and
court files, access to counsel, the right to confront one’s accusers, and the
37 Rome Statute of the International Criminal Court, supra note 33, art. 20(3).
38 See Colum Lynch, UN Warns Cambodia on War Crimes Tribunal, WASHINGTON
P OST (3 February 2001), also: “The action raised concerns that Cambodia is seeking to
shield a former Khmer Rouge foreign minister, Ieng Sary, 71, from prosecution. Sary
was granted an amnesty by King Norodom Sihanouk for genocide, after he and 10,000
armed loyalists defected from the Khmer Rouge and made peace with the government.
Cambodian Prime Minister Hun Sen has warned recently that any attempt to prosecute
Sary could lead to civil war.”
EXPERIMENTS IN INTERNATIONAL JUSTICE
199
right to cross-examination of witnesses.39 The Group of Experts found that
Cambodian criminal procedure is confused and has several laws currently
applicable with differing provisions on the same issues.40 The Law on
Extraordinary Chambers has attempted, through article 35, which essentially repeats article 14(3) of the International Covenant on Civil and
Political Rights, to strengthen the core due process rights afforded to
accused persons. It is also repeatedly stressed that guidance may also be
sought in procedural rules established at the international level. A reasonable reading is that this permits reliance on “soft law” such as the Body of
Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment,41 as well as the Rules of Procedure and Evidence of the
ICTY, ICTR and ICC.
1.4. Problems of Implementation
The Extraordinary Chambers have yet to be created, but it is clear that
implementing the Law on Extraordinary Chambers and then ensuring it
works in accordance with international standards will be difficult tasks.
The court system onto which the Extraordinary Chambers are to be grafted
is by all accounts, including that of the Cambodian government itself,
a weak one, rife with undue influence and corruption. Its existing judicial personnel will not just take part in the venture but control it. In
such circumstances, Cambodian control of the Extraordinary Chambers
is a fatal defect. This cannot be repaired by devices such as the “Super
Majority”, which will create an extremely politicised judicial process from
the start. It appears the “Super Majority” will only apply to decisions on
innocence or guilt; in all other matters, the bare majority will be able to
control proceedings. There is the obvious risk that there may be insufficient
votes to convict, yet no clear basis for acquittal.42
Given that the law is aimed at a restricted group, namely leaders and
those most responsible, there are unlikely to be many trials before the
Extraordinary Chambers. Thus, it is unnecessary to duplicate existing
structures and to have three levels of court; two levels would have sufficed
39 See Core Issues in Khmer Tribunal Law Unresolved, Human Rights Watch Press
Release (21 January 2000).
40 Group of Experts Report, supra note 5, para. 125. In addition to the 1993 Constitution,
Cambodian criminal procedure is governed by the 1992 Supreme National Council Decree
on Criminal Law and Procedure (drafted by United Nations officials during the mandate
of the United Nations Transitional Authority in Cambodia) and the Law on Criminal
Procedure of 28 January 1993.
41 G.A. Res. 43/173.
42 See Core Issues in Khmer Tribunal Law Unresolved, Human Rights Watch Press
Release (January 21, 2000).
200
SUZANNAH LINTON
and would be more cost effective (particularly when one considers that
the top tier, the Supreme Court, is to have nine judges). In addition to the
three levels of court, there is also to be a specially appointed Pre-Trial
Chamber, whose task is just to sort out the differences between the CoProsecutors and Co-Investigating Judges. All these layers will undoubtedly
inhibit expeditious trial.
The concept of having two equally responsible Co-Prosecutors and CoInvestigating Judges in charge of prosecutions and investigations respectively is an exceptional one born of compromise. How is work to be divided
amongst them? Cross cultural work ethics and inconsistent practices will
certainly cause difficulties and polarised office relations can be expected.
Much inefficiency and waste can also be anticipated. Substantial delays
are inevitable as both persons are required to agree on a course of action,
and disagreements, of which there can be expected to be many, have to
be resolved by a panel of judges. That a panel of judges, voting on the
basis of the “Super Majority”, is empowered to make decisions on investigation and prosecution is also a unique concept. It is most unusual and
contrary to all notions of prosecutorial independence for a panel of judges
to, for example, decide on disputes between the Co-Prosecutors concerning
prosecutorial strategy at trial. It dilutes standards of judicial independence
and creates a politically charged indictment process.43
The uncertainty in Cambodian criminal procedure identified by the
Group of Experts can be expected to cause much confusion, delay and
violations of fundamental rights. Furthermore, the roles envisaged by the
Law on Extraordinary Chambers for Co-Investigating Judges and CoProsecutors are difficult to reconcile with existing Cambodian criminal
procedure as contained in the Law on Criminal Procedure of 1993.44
Under the Law on Extraordinary Chambers, the Co-Investigating Judges
are meant to investigate and the Co-Prosecutors are to prepare indictments
and prosecute cases, all of which is to be done in accordance with the
Cambodian Law on Criminal Procedure. There is thus meant to be a clear
division between investigation and prosecution. However, this is not the
situation under Cambodian criminal procedure. It provides for police who
work under prosecutorial supervision at the initial stages of investigation.45
The police report to the prosecutor, and forward the evidence collected in
43 Supra note 18.
44 Kram dated 8 February 1993 on Criminal Procedure, adopted by National Assembly
of the State of Cambodia on January 28, 1993, available in English at <http://www.bigpond.com.kh/Council_of_Jurists/Penal/pen002g.htm>.
45 Article 36, ibid., makes it clear that judicial police themselves are under direct guidance of the prosecutors and under supervision of the prosecutor general of the Appeals
Court.
EXPERIMENTS IN INTERNATIONAL JUSTICE
201
the case to him or her.46 If further investigation is warranted, the prosecutor
refers the matter to the investigating judge by way of an “introductory
charge”.47 The investigating judge will then investigate and report back to
the prosecutor.48 In practice, it is the police who carry out investigations
and the investigating judge generally passes police and prosecution files
along uncritically.49
Under article 36 of the Cambodian Law on Criminal Procedure, both
prosecutors and investigating judges are authorized to perform judicial
policing activities, which include the gathering of evidence. Thus, the
prosecutor is entitled to initiate investigative activities, in addition to supervising the police and basic duties as set out in article 56.50 Pursuant to
article 69, the invetigating judge is bound by the “introductory charge”
of the prosecutor and cannot take any independent investigative steps
prior to receiving the introductory charge. Thus, the investigating judge
has no right to initiate investigations. Even if a criminal report has been
lodged directly, the investigating judge cannot commence investigative
steps without the prosecutor providing an introductory charge.51 The
investigating judge is also limited by the terms of that charge, and can
only investigate the area of criminality identified by the prosecutor in the
introductory charge.52 These are not the clear divisions of labour envisaged
in the Law on Extraordinary Chambers.
There are few time limits under the Code of Criminal Procedure, and
substantial delays impinging on the right to expeditious trial may well arise
from the absence of a time limit within which the Co-Investigating Judges
have to complete investigations or issue their report to the Co-Prosecutors.
Among the few time limits is one that requires a person arrested to be
brought to the court within forty-eight hours of arrest.53 Another provides
that appeals from detention orders of the investigating judge have to be
46 Ibid., art. 44.
47 Ibid., art. 69.
48 Ibid., art. 70.
49 See Core Issues in Khmer Tribunal Law Unresolved, Human Rights Watch Press
Release (21 January 2000).
50 These are “to receive the complaint and the denunciation related to the crime or the
misdemeanour even though the complaint is from any person, from any officer of the
judicial police or from any official competent for the penal action; to receive the report
made by the officer of the judiciary police who ascertains crimes, misdemeanours or the
minor offences; to proceed to preparatory investigation by himself/herself in case where
the offence is a crime or a flagrante delicto misdemeanour; to call out the public force for
the performance of his/her duty,” art 56, supra note 44.
51 Ibid., art. 69.
52 Ibid., art. 70.
53 Ibid., art. 38.
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SUZANNAH LINTON
dealt with within fifteen days by the Court of Appeal.54 One that can be
expected to cause problems is the requirement that after the investigating
judge forwards his or her complete report, the prosecutor is required to
file a charge within three days.55 Not only does this seem to bind the
Co-Prosecutors to the findings of the Co-Investigating Judges, but compliance with this time limit would be impossible in situations where the
Co-Prosecutors disagree and the matter requires resolution by a Pre-Trial
Chamber.
2. EAST TIMOR
East Timor was for several hundred years a colony of Portugal and, since
1960, a “non-self governing territory”.56 It was being taken by Portugal
towards independence when it was invaded by the armed forces of the
Republic of Indonesia, on 7 December 1975.57 East Timor was declared
Indonesia’s twenty-seventh province on 17 July 1976. Although faced with
many reports of widespread atrocities, the international community was
only prepared to engage in token gestures.58 Beyond a failed attempt by
Portugal indirectly to challenge Australian recognition of the annexation at
the International Court of Justice,59 there was no concrete response to the
invasion and the suppression of East Timor’s right of self-determination.
54 Ibid., art. 79.
55 Ibid., art. 89.
56 In 1960, the General Assembly declared East Timor to be a non-self-governing
territory administered by Portugal: G.A. Res 1542 (XV).
57 See C ATHOLIC I NSTITUTE FOR I NTERNATIONAL R ELATIONS AND THE I NTERNA TIONAL P LATFORM OF J URISTS FOR E AST T IMOR , I NTERNATIONAL L AW AND THE
Q UESTION OF E AST T IMOR (1995); JAMES D UNN , T IMOR : A P EOPLE B ETRAYED
(1983); J OHN TAYLOR , I NDONESIA’ S F ORGOTTEN WAR : T HE H IDDEN H ISTORY OF
E AST T IMOR (1991); J OHN TAYLOR , E AST T IMOR : T HE P RICE OF F REEDOM (1999).
From United Nations practice, it is clear that East Timor continued to be considered a
non-self-governing territory under the administration of Portugal.
58 The Security Council passed two resolutions, calling for Indonesian withdrawal from
Portuguese Timor and calling upon all States to respect the territorial integrity of East
Timor as well as the inalienable right of its people to self-determination (S.C. Res. 384
(1975)), and condemning the Indonesian invasion (S.C. Res. 389 (1976)). The General
Assembly demonstrated a little more interest, passing several resolutions on the question
of East Timor: G.A. Res. 3485 (1975); G.A. Res. 31/53; G.A. Res. 32/34; G.A. Res. 33/39;
G.A. Res. 34/40; G.A. Res. 35/27; G.A. Res. 36/50; G.A. Res. 37/30.
59 Case Concerning East Timor (Portugal v. Australia), [1995] I.C.J. Reports 90,
brought in relation to the Treaty between Australia and the Republic of Indonesia on
the Zone of Cooperation in an Area between the Indonesian Province of East Timor and
Northern Australia, 11 December 1989, [1991] 29 I.L.M. 469.
EXPERIMENTS IN INTERNATIONAL JUSTICE
203
In 1999, following a change of leadership and a volatile domestic situation, Indonesia agreed to a referendum that would permit the people
of East Timor to determine their future. On 30 August 1999, 78.5% of
the East Timorese voted against remaining within Indonesia. There had
already been a significant escalation in violence in the months before
the referendum, but after the result was announced, violence increased
dramatically throughout East Timor, including murders, kidnappings, rape,
property destruction, theft of homes and property, the burning and destruction of military installations, offices and civilian residences, with the goal
of forced deportation.60 An international force (INTERFET) mandated by
the Security Council to restore order landed in East Timor on 20 September
1999.61
Since 25 October 1999, the United Nations’ role in East Timor has been
as transitional administrator, taking the former colony to independence.
The United Nations Transitional Administration in East Timor (UNTAET)
is mandated to exercise all legislative and executive authority, including
the administration of justice, security, maintenance of law and order,
establishment of an effective administration, support of capacity-building
for self-government and assistance in the establishment of conditions for
sustainable development.62 One of its major tasks has been the creation
of a criminal justice system from scratch. East Timorese jurists with no
prior experience of working as judges, prosecutors and defence counsel
have been appointed to office with full powers to act from the moment of
appointment, and ever developing hybrid laws based on that of Indonesia,
with substantial amendments by UNTAET, are applied. Although the
external structures of a system (appointment of personnel, establishment of courts, commencement of proceedings) have been created, the
administration of justice has been fraught with difficulties.63
East Timor’s “Serious Crimes” enterprise is said to be based upon
the model which was being discussed for Cambodia in early 2000. It is
also believed to have been heavily influenced by United Nations work in
Court Kosovo, where the War Crimes and Ethnic Crimes Court project
has now been abandoned. While the discussions about how to deal with
60 KPP-HAM, Report on the Investigation of Human Rights Violations in East Timor
(2000), para. 31. Only an Executive Summary of this Report has been officially released:
see <http://www.indonesia-ottawa.org/news/Issue/HumanRights/ham-kpp-timtim- 01312000.htm>.
61 S.C. Res. 1264 (1999).
62 UNTAET was established by S.C. Res 1272 (1999).
63 See Report of the Security Council Mission to East Timor and Indonesia, U.N. Doc.
S/2000/1105, para. 8; Report of the High Commissioner for Human Rights on the Situation
of Human Rights in East Timor, U.N. Doc. E/CN.4/2001/37, para. 13.
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SUZANNAH LINTON
the Cambodian atrocities have been painfully long and complex involving
close negotiation with the democratically elected leaders of Cambodia,
East Timor’s scheme was rushed through within a matter of months of the
United Nations taking over as its administrator. And while the Cambodian
government has had the luxury of rejecting the offer of an international
tribunal, the persistent calls from East Timorese,64 experts65 and NGOs66
for such a tribunal to try the East Timor atrocities have come to no avail.
The Serious Crimes project is centred on the District Court of Dili,
where a specially established prosecution service (almost exclusively international in composition, with its own totally international investigation
unit) pursues cases of genocide, crimes against humanity, war crimes,
torture and certain violations of the Indonesian Criminal Code (murder
64 On June 20, 2001, East Timor’s National Council passed a resolution calling for the
creation of an international tribunal, “East Timor National Council sets up truth commission to probe rights violations”, UN Department of Public Information, 20 June 2001.
See also Nobel Laureate Appeals For East Timor Tribunal, Associated Press (23 April
2001); International Court must be Set Up in Timor Lorosae as Fast as Possible, Suara
Timor Lorosae (11 April 2001), <http://www.pcug.org.au/∼wildwood/01aprfast.htm>.
For a contrary view see Human Rights Tribunal Not a Priority: Gusmao, Jakarta Post
(20 April 2001) and the strong response of East Timorese NGOs: Expression of Concern
at Xanana’s Statement Regarding an International Tribunal, NGO Forum Press Release
(23 April 2001): “given that the courts both in Indonesia and Dili, in their investigations
into instances of crimes perpetuated by the Indonesian military in East Timor, have so far
failed to satisfy the victims’ families demands for justice [t]he NGO Forum regards an
International Tribunal as an option that needs to be seriously considered given that to date
Indonesia has not made any progress in investigating human rights offences committed by
the Indonesian military in East Timor”.
65 The International Commission of Inquiry on East Timor was established by the
Secretary-General to gather and compile information on possible violations of human
rights and acts which might constitute breaches of international humanitarian law
committed in East Timor since January 1999. Reporting on January 31, 2000, it recommended the establishment of an international tribunal for East Timor (see Report of the
International Commission of Inquiry on East Timor to the Secretary-General, U.N. Doc.
A/54/726,S/2000/59 (“Report of the International Commission of Inquiry”)). The Special
Rapporteurs on Torture, Extrajudicial, Summary or Arbitrary Executions and Violence
against Women recommended that unless the Indonesian government “in a matter of
months” brings those responsible to justice, then the Security Council should consider the
establishment of an international tribunal (see Report submitted by the Secretary-General
to the General Assembly on the Situation on Human Rights in East Timor, U.N. Doc.
A/54/660) (“Report of the Special Rapporteurs”).
66 See Petition for International Tribunal on East Timor, at <http://www.pcug.og.au/wildwood/01maytribunalpetition.htm>; East Timor: Crimes Against Humanity Must Not
Go Unpunished – TAPOL Demands International Tribunal for East Timor on Anniversary
of UN Report, TAPOL Press Release (31 January 2001). East Timor Still Awaits Justice
One Year After UN Call for International Tribunal, ETAN [East Timor Action Network]
Press Release (31 January 2001).
EXPERIMENTS IN INTERNATIONAL JUSTICE
205
and sexual violence) before an internationally dominated panel of judges
known as the Special Panel. Appeals are to the Court of Appeal (also
dominated by internationals), which hears all appeals from the four district
courts of East Timor. It is a strictly United Nations operation (the few
East Timorese involved are considered part of the civil service), even
though it is now technically part of the East Timor Transitional Administration (ETTA), the coalition of UNTAET senior officials and certain
handpicked East Timorese who are meant to be jointly running the country
for the remainder of UNTAET’s transitional administration. In this paper,
references to UNTAET include the ETTA where relevant.
The law does not provide for a separate fund for the Serious Crimes
enterprise; therefore the Special Panel is funded by UNTAET as part of the
District Court of Dili,67 and the Office of the Deputy General Prosecutor
for Serious Crimes (also referred to as the Serious Crimes Unit) is funded
by the Transitional Administrator as part of the public prosecution service
of East Timor.68 Financing of the enterprise is therefore split between the
budget of the ETTA and UNTAET, which is chanelled through the United
Nations Department of Peacekeeping.
Through the incorporation of much of the substantive legal regime of
the ICC Statute, a state of the art system for prosecuting international
crimes has been created for East Timor. The truth is that by adopting
provisions meant for the International Criminal Court, UNTAET may have
been overambitious and bound itself to completing a extremely costly and
complex process that would seem to be beyond its capacity. Many have
noted the enormous difficulties faced by the effort to bring those responsible to justice, with minimal resources and apparent lack of institutional
support.69 Reports also blame bad leadership and poor management for the
67 Section 34 of Regulation 2000/11 on the Organisation of Courts in East Timor,
UNTAET/REG/2000/11 provides that “during the transitional period, UNTAET shall
provide the necessary financial and technical support to the courts in East Timor”.
68 Section 2 of Regulation No 2000/16 on the Organisation of the Public Prosecution
Service in East Timor, UNTAET/REG/2000/16, provides that the “necessary funding and
technical assistance for the Public Prosecution Service shall be provided by the Transitional
Administrator”. The Special Representative of the Secretary-General, in his capacity as the
Transitional Administrator, is responsible for all aspects of the UN’s work in East Timor,
with the power to enact new laws and regulations and to amend, suspend or repeal existing
ones.
69 See Petition for International Tribunal on East Timor, at <http://www.pcug.og.au/wildwood/01maytribunalpetition.htm>: “The judicial system in East Timor has also failed
to deliver justice to date. Investigations by the Serious Crimes Investigation Unit (SCIU)
have been unacceptably slow. The SCIU initially concentrated on a select few cases and
major atrocities, such as that committed at the Suai church compound on 6 September 1999
where dozens were murdered, have not been properly investigated. There are persistent
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SUZANNAH LINTON
under-performance of the Serious Crimes Unit and its internal strife.70 The
problematic enterprise is being closely monitored by the Security Council,
whose mission to Indonesia and East Timor reported in November 2000
on the inability of the Serious Crimes Unit to carry out its mandate.71 In
extending UNTAET’s mandate to 31 January 2002, the Security Council
stressed the need to address shortcomings in the administration of justice
in East Timor, particularly to bring to justice those responsible for Serious
Crimes in 1999.72
UNTAET Regulation No 2000/11 on the Organisation of Courts in East
Timor73 sets out the basic concept of mixed panels within the District
Court of Dili, and UNTAET Regulation No 2000/15 on the Establishment
of Panels with Exclusive Jurisdiction over Serious Criminal Offences74
provides the nuts and bolts of the project. Regulation 2000/15 draws much
from the substantive legal provisions of the ICC Statute. The Special
reports that the SCIU’s work is severely hampered by problems relating to a lack of
resources, management conflicts, poor communications, the lack of clear policy guidelines,
and reluctance to expose the systematic nature of the 1999 violence. There are also allegations of political interference in the judicial process.” See also East Timor Still Awaits
Justice One Year After UN Call for International Tribunal, ETAN Press Release (31
January 2001): “Both Indonesian and UN prosecutorial efforts have proven inadequate
. . . UN prosecutions in East Timor are fraught with procedural and other problems.
[Charles Scheiner, National Coordinator of ETAN] attended the first day of the trial of
Joao Fernandes in Dili District Court on 10 January. He observed a lack of resources and
professionalism in the prosecution, the defense, and the management of the court.” Also,
E. Timor: Investigators Struggle with Criminal Lack of Resources, South China Morning
Post (14 November 2000); UN Pledges more Resources to East Timor’s Chief Investigator,
AFP (20 November 2000).
70 See Charles Scheiner, Estafeta (newsletter of the East Timor Action Network/US,
April 2001): “The unit is inadequately funded and staffed, and plagued with mismanagement and incompetence which leads many to doubt its seriousness of purpose . . . The
under-resourced judicial system is fraught with problems . . . The SCU seems oblivious
to systematic military execution of the 1999 destruction, failing to develop cases or obtain
Indonesian cooperation against Indonesian military officers.” Also see Mark Dodd, Timor’s
crime fighters in crisis, The Age, 1 May 2001: “The United Nations’ Serious Crimes
Unit, the taskforce gathering evidence to prosecute perpetrators of the violence that swept
East Timor in 1999, is on the point of collapse. Morale is at rock bottom and qualified
investigators are quitting amid claims that the unit is under-equipped and badly managed.
In January the UN sent a senior official to report on problems in the taskforce, now dubbed
the ‘Not-So-Serious Crimes Unit’ by its staff.”
71 See Report of the Security Council Mission to East Timor and Indonesia, supra note
63.
72 U.N. Doc. S/RES/1338 (2001), para. 8.
73 Regulation No. 2000/11, supra note 67.
74 UNTAET Regulation No. 2000/15 on the Establishment of Panels with Exclusive
Jurisdiction over Serious Criminal Offences, UNTAET/REG/2000/15.
EXPERIMENTS IN INTERNATIONAL JUSTICE
207
Panel is required to apply the laws of East Timor and, where appropriate,
applicable treaties and recognised principles and norms of international
law, including the established principles of the international law of armed
conflict. Given that no interpretative document accompanied Regulation
2000/15 and its heavy reliance on the ICC Statute, the latter’s travaux
préparatoires as well as the Elements of Crimes should be considered
by the Special Panel for the purposes of interpreting the applicable law.75
In addition to the primary sources of international law, the Special Panel
should also examine secondary sources such as the jurisprudence of the
post-World War II prosecutions, the ICTY and ICTR, and the jurisprudence of national courts dealing with international crimes. Finally, given
that the majority of cases are being dealt with under Indonesian law,
recourse to the practice in that system is also called for.
Regulation 2000/15 employs the customary international law definition
of genocide, embodied in article II of the Genocide Convention and the
statutes of the ICC, ICTY and ICTR. As already noted in the discussion on
Cambodia, political groups are excluded from this definition of genocide.
The East Timor atrocities would seem to have been politically motivated,
with East Timorese pro-independence supporters (and those perceived to
be supporters) being targeted by attackers who, for the greater part of
the occupation, were primarily Indonesian but included East Timorese.
Nevertheless, there is judicial support for a more flexible approach, one
that considers that in the absence of internationally recognised definitions
of the protected groups, the court may assess the concepts of national,
ethnical, racial and religious groups in light of the particular political,
social and cultural context of the country in which the genocide is alleged
to have occurred.76
Section 5.1 of Regulation 2000/15 essentially replicates the definition
of crimes against humanity in the ICC Statute, with one subtle distinction, namely that both the punishable act and the widespread or systematic
attack must be directed against a civilian population. One of the hallmarks
of the crime against humanity is the existence of a policy element; this
means there is state involvement, either by way of governmental policy,
sponsorship or mere toleration of the widespread or systematic attacks.77
Although operating under legally unclear standards of proof, both the
International Commission of Inquiry and Indonesia’s KPP-HAM were
75 See Report of the Preparatory Commission for the International Criminal Court, Part
II, Finalized Draft Text of the Elements of Crimes, U.N. Doc. PCNICC/2000/1/Add.2.
76 Prosecutor v. Rutaganda, supra note 23, para. 56.
77 Prosecutor v. Kupreskic (Case No. IT-95-16-T), Judgment, 14 January 2000, para.
552; Prosecutor v. Tadic (Case No. IT-94-1-T), Judgment, 7 May 1997, para. 648.
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able to identify clear patterns of a widespread, systematic attack on the
civilian population of East Timor coupled with official Indonesian government involvement, the key elements of crimes against humanity.78 Most
tellingly, the Special Rapporteurs found that even applying the strict standards of the International Court of Justice to establish state responsibility
for the acts of armed groups in a context of external intervention (dependency of the group on the state) and the exercise of effective control of
the group by the State, there was sufficient evidence that the Indonesian
Army (Tentara Nasional Indonesia, TNI) was involved in the operational
activities of the militia, which for the most part were the direct perpetrators of the 1999 crimes, to incur the responsibility of the Government of
Indonesia.79
Section 6.1 of Regulation 2000/15 deals with war crimes and mirrors
article 8(2) of the ICC Statute. It recognises four categories of war crimes:
grave breaches of the Geneva Conventions; other serious violations of
the laws and customs applicable in international armed conflict; serious
violations of common article 3 of the Geneva Conventions; and serious
violations of the laws and customs applicable in armed conflicts not of an
international nature.
Charges of war crimes will require the prosecution to prove the existence of armed conflict in East Timor. The orthodox view is that the East
Timor conflict began on 7 December 1975 with the invasion of Portugueseadministered East Timor by the armed forces of Indonesia in violation of
the Charter of the United Nations and customary jus ad bellum.80 As a
non-self governing territory, East Timor was not then (and still is not) a
State and could not be party to international conventions. Both Portugal
and Indonesia had ratified the Geneva Conventions.81 The invasion became
an occupation as Indonesia consolidated its authority over East Timor.
Occupation is defined in Article 42 of Hague Convention IV: “Territory
78 Report of the International Commission of Inquiry, supra note 65, paras. 135–142;
KPP-HAM Report, supra note 60, paras. 22, 60.
79 Report of The International Commission of Inquiry, supra note 65, para. 72.
80 Indonesia claims that it was asked to restore law and order in a civil war and that the
East Timorese exercised their right to self-determination by seeking to join the Republic
of Indonesia. The United Nations and the vast majority of States, apart from Australia,
did not accept this claim. Another view is that the Democratic Republic of East Timor
was born following the declaration of independence made by the Fretilin administration
on 28 November 1975 and that Indonesia therefore invaded the new State on December 7,
1975. Although several countries did recognise the Democratic Republic of East Timor, it
is generally felt that the criteria for statehood were not met.
81 Indonesia (30 September 1958), Portugal (14 March 1961); Portugal ratified Additional Protocol I on May 7, 1992
EXPERIMENTS IN INTERNATIONAL JUSTICE
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is considered occupied when it is actually placed under the authority of
the hostile army. The occupation only extends to the territory where such
authority has been established and can be exercised.”82 The Fourth Geneva
Convention is also crucial here, for it applies “to all cases of partial or
total occupation of the territory of a High Contracting Party, even if the
said occupation meets with no armed resistance”.83 Although some of its
provisions “expired” a year after the occupation, core provisions continued
to apply during the entire period of Indonesia’s occupation.84
During the twenty-four years that East Timor was occupied by
Indonesia, the occupying forces met with local armed resistance85 engaged
in a struggle for national liberation. The intensity of these encounters
varied over time, with the Indonesian forces being assisted by domestic
militias and other paramilitary groups, and the FALINTIL at times
enjoying control of territory. The categorisation of the situation as one of
occupation remains valid until the retreat of the last Indonesian forces at
the end of October 1999, and Indonesia’s formal handover of its authority
and control over East Timor to the United Nations on 25 October 1999.86
Although the month of September 1999 is unique for the scale of atrocities committed and the near absence of armed engagements between
82 “[B]y 1939 these rules laid down in [ Hague Convention IV] were recognized by all
civilized nations, and were regarded as being declaratory of the laws and customs of war”:
France et al. v. Goering et al., (1948) 22 I.M.T.497. Hague Convention IV was ratified by
Portugal on 13 April 1911. In any event, the Convention is widely acknowledged to form
part of customary international law.
83 Supra note 13, art 2.
84 Articles 1–12, 27, 29–34, 47, 49, 51–53, 59, 61–77 and 143 continue to apply
throughout an occupation.
85 The FALINTIL was the Timorese armed resistance, formally the armed wing of
the Fretilin, the main Timorese resistance party, and a founding member of the National
Council of East Timorese Resistance. The FALINTIL has now been restructured as the
defence force of East Timor.
86 It can be argued that Indonesia, as the illegal occupying power of a non-self-governing
territory, had no legal standing to transfer sovereignty, which still vested de jure in the
administering power, Portugal. See Jarat Chopra, Introductory Note to UNTAET Regulation
13, 39 I.L.M. 936 (2000), 937, who reported that the Personal Envoy of the SecretaryGeneral told Indonesian representatives that they need not formally accept the outcome of
the referendum and relinquish authority because the United Nations had never recognized
the legitimacy of their occupation of East Timor. Also see Roger Clark, “East Timor,
Indonesia and the International Community”, 14 T EMPLE I NT ’ L & C OMP. L. J. 75 (2000),
referring to the fact that the preamble to the Agreement between the Republic of Indonesia
and the Portuguese Republic on the Question of East Timor, 5 May 1999, U.N. Doc.
S/1999/513, noted both Indonesian and Portuguese claims, and that this seems to employ
the controversial approach of the International Court of Justice in the ICJ East Timor case,
supra note 59.
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the Indonesian forces and the FALINTIL (under orders not to engage),
the same laws and customs governing the occupation continued to apply
during that month. Thus, it would seem clear that the invasion and
occupation of East Timor constituted an international armed conflict to
which international humanitarian law, in particular the Geneva Conventions, applied. However, given that the atrocities took place from 1975 to
1999, there are likely to be substantial problems with prosecuting certain
offences from the 1970s, 1980s and possibly even the 1990s in accordance
with international standards.
The prosecution of torture as a serious crime is complicated by the fact
that two definitions are employed in Regulation 2000/15. Section 5.2(d)
of Regulation 2000/15 provides that “‘[t]orture’ means the intentional
infliction of severe pain or suffering, whether physical or mental, upon
a person in the custody or under the control of the accused; except that
torture shall not include pain or suffering arising only from, inherent in
or incidental to, lawful sanctions”. The second definition of torture, that
of section 7.1, is to apply to torture when it is not committed as a crime
against humanity but as war crimes, a means of committing genocide and
the stand-alone international crime of torture: “torture means any act by
which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him/her or a third
person information or a confession, punishing him/her for an act he/she
or a third person has committed or is suspected of having committed, or
humiliating, intimidating or coercing him/her or a third person, or for any
reason based on discrimination of any kind. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions.”
Prosecutions based on acts of torture committed in the 1970s, 1980s and
even 1990s will confront issues concerning the principle of legality, an
issue discussed in detail later in this paper.
Murder and sexual offences that took place between 1 January 1999
and 25 October 1999 are serious crimes and can be tried as violations
of the Indonesian Criminal Code by the Special Panel. The Indonesian
Criminal Code’s sexual offence provisions are contained in a section
entitled “Crimes against Decency”; in this is to be found the criminalisation of adultery87 and the definition of rape as being “forcing a woman
87 “By a maximum imprisonment of nine months, shall be punished: 1.a any married
man who knowing that art 27 of the Civil Code is applicable to him, commits adultery”:
Indonesian Criminal Code, art. 284(1).
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to have sexual intercourse out of marriage”.88 Sexual crimes are crimes
committed against a person and not against abstract concepts such as
decency or honour. Among its other flaws, the Indonesian provision does
not recognise that rape is possible within marriage, or that men can be the
victims of rape too. It is difficult to reconcile this legal regime with the
recent progressive jurisprudence emerging from the international ad hoc
tribunals.89
The grounds of individual criminal responsibility set out in section 14
mirror those of the ICC Statute. They arise if the individual committed,
planned, instigated, ordered, solicited, induced, aided, abetted or otherwise
assisted in the commission of the crime, or a substantial step was taken
towards its commission. There is also individual criminal responsibility
where an individual in any other way contributes to the commission or
attempted commission of the crime (the contribution must be intentional
and either made with the aim of furthering the criminal activity or purpose
of a group or with the knowledge of the group’s intention to commit the
crime). Direct and public incitement to commit genocide is specifically
identified as grounds for individual criminal responsibility. Under section
16, command responsibility arises where a superior knew or had reason to
know that a subordinate was about to commit illegal acts or had done so
and the superior failed to take the necessary and reasonable steps to prevent
such acts or to punish the perpetrators thereof. This formulation is that used
by the ICTY and ICTR Statutes rather than that of the ICC Statute. On the
subject of defences, Regulation 2000/15 reiterates the relevant provisions
of the ICC Statute.
All criminal proceedings in East Timor are now regulated by the
Transitional Rules on Criminal Procedure,90 a hybrid UNTAET document
drawing mainly from the continental law tradition, with influence from
common law jurisdictions, as well as some of the provisions for the international tribunals and the ICC. The law of procedure therefore applies
equally to serious crimes as it does to all other crimes perpetrated in
East Timor. The venture is however administered separately from ordinary
crimes, in that there is an investigation unit dedicated to the investigation
of serious crimes, acting under the direction and supervision of the Office
88 “Any person who by using force or threat of force forces a woman to have sexual inter-
course with him out of marriage, shall, being guilty of rape, be punished by a maximum
imprisonment of twelve years”: Indonesian Criminal Code, art. 285.
89 See Prosecutor v. Akayesu (Case No. ICTR-96-4-T) Judgment, 2 September 1998;
Prosecutor v. Furundzija (IT-95-17/1-T10), Judgment, 10 December 1998; Prosecutor v.
Kunarac et al. (IT-96-23 and IT-96-23/1), Judgment, 22 February 2001.
90 UNTAET Regulation 2000/30 on Transitional Rules of Criminal Procedure,
UNTAET/REG/2000/30.
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of the Deputy General Prosecutor for serious crimes. While the judges of
the Ordinary Panels have dealt with issues of detention relating to serious
crimes, the judges of the Special Panel only deal with serious crimes.
An investigating judge specifically appointed to the Special Panel ensures
the rights of suspects are protected, and issues documents such as arrest
warrants and exhumation orders. He or she is empowered to order detention for up to six months (with monthly reviews), but thereafter detentions
must be reviewed by a panel of judges. Serious crime indictments are filed
at the District Court of Dili, and the cases prosecuted before the Special
Panel. Appeal is to the Court of Appeal. Evidentiary rules are relaxed:
all that is relevant and of probative value is admissible.91 Admissions of
guilt, a feature of many of the East Timor cases, are provided for in section
29A.1, which mirrors article 65 of the ICC Statute.
2.1. Grand Design v. Reality
Taken at face value, the East Timor Serious Crimes legislation creates a
state of the art regime that, with its enormous reliance on the ICC Statute,
is progressive and has much to commend it. It has attempted to balance
some of the considerations particular to East Timor: the fact that many
were already being held in detention, the need to ensure that the investigation and prosecution of atrocities would not detract from those into
current crime and the pressure to establish a functioning criminal justice
system. With suspects (all low level perpetrators with no leadership role
or involvement in ordering or organising the atrocities) already being held
in detention, and being continually arrested for 1999 atrocities, UNTAET
obviously felt it did not have the luxury of time and had to act as a matter
of urgency in establishing a system for prosecuting atrocities. In the rush
to “get started”, it would seem that much has been overlooked.
There was either a failure to consider, or to give adequate consideration to, the realities of implementing such a regime in East Timor.
The only United Nations reports that examined the question of how to
deal with the atrocities in East Timor are those of the Special Rapporteurs and the International Commission of Inquiry, sent to investigate
the atrocities in late 1999. These experts were commissioned primarily
to examine what happened, but were also to make recommendations to
the Secretary-General. They did not, as did the Group of Experts for
Cambodia, closely examine the various models and their suitability for
East Timor. Both nevertheless called for an international tribunal to try
the East Timor atrocity cases; the International Commission of Inquiry
91 Ibid., s. 34.1.
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proposed Indonesian and East Timorese participation and the Special
Rapporteurs recommended that that if Indonesia failed in a matter of
months to “investigate TNI involvement in the past year’s atrocities . . .
both in the way of credible clarification of the facts and the bringing to
justice of the perpetrators”, an international tribunal should be created.92
The Special Rapporteurs also wisely foresaw that the East Timorese
judicial system, which had yet to be created and tested, could not hope to
cope with investigations into atrocities of this scale, and that the best efforts
would be unlikely to result in complete investigations into the full range
of crimes.93 And, it was only as an interim measure pending the establishment of an international tribunal that the International Commission of
Inquiry recommended strengthening UNTAET’s investigative capacity.94
The international community chose instead to put its faith in Indonesian
promises to try perpetrators, as well as in developing UNTAET’s own
investigative capacity.95
There is no record that UNTAET carried out its own detailed study
that consulted experts and meaningfully engaged the East Timorese on
how best to address the atrocities.96 Nor is there one to explain why
UNTAET decided the Cambodian model of mixed panels within the
existing criminal justice system was appropriate for East Timor, with its
destroyed infrastructure, dysfunctional criminal justice system with novice
legal personnel (the first judges and prosecutors, who had never practiced before, were appointed on January 7, 2001), shell-shocked society
and atrocities committed over a brutal twenty-four-year long occupation.
Furthermore, it is not known why it was felt that the legal regime designed
92 Report of the Special Rapporteurs, supra note 65, para. 73.
93 Ibid.
94 Report of International Commission of Inquiry, supra note 65, para. 150.
95 See Mark Riley, T HE S YDNEY M ORNING H ERALD, Feb. 7, 2000: The Costa Rican
MP who headed the [International Commission of Inquiry], Sonia Picado, went further and
said she had no faith in the ability of the Indonesian legal system to deliver justice to the
East Timorese. Yet, Annan did not endorse the panel’s recommendations. Instead, he now
says Indonesia should first be given the opportunity to prosecute those responsible itself.
“The main thing is to put people on trial and make them accountable,” [the SecretaryGeneral] says. “Normally, we need to see how they proceed. If the Government has the
capacity and the willingness to do it and is doing it, you don’t want to create another
tribunal.”
96 Judging by the strength of East Timorese support for an international tribunal, it would
seem that this would have been their mechanism of preference, had they been properly
consulted and allowed to have a meaningful say in the matter. There was discussion with
East Timor’s unelected leaders through a body known as the National Consultative Council
before the adoption of the already drafted legislation, but the matter was not opened for
public debate in the community.
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for the ICC could realistically be implemented in a district court of one of
the world’s poorest nations.
This system was grafted onto the District Court of Dili, a newly
established court that was struggling to “stay afloat” with novice judges,
prosecutors and defence counsel who had never worked in that capacity
before.97 Even the court building was new (rebuilt by Portugal in March
2000). There was little guidance and training provided, and dealing with
the ever growing case load was an enormous struggle. There was hardly
any administrative staff to assist with court organisational and management issues, and files and evidence were routinely misplaced. Pre-trial
detention was the norm, even for juveniles. Equipment in the hot and over
crowded rooms was limited to a few second-hand computers donated by
an Australian NGO. With four languages in use in East Timor (Bahasa
Indonesia, English, Tetum and Portuguese), interpretation and translation facilities have been woefully inadequate. The persistent failure to
provide adequate support to the court, prosecution and defence, coupled
with resentment of alleged interference in professional independence, led
to difficult relations between UNTAET’s Ministry of Justice and East
Timorese judicial personnel.98 To cap it all, the adoption of the Serious
Crimes project was viewed with much anger by the East Timorese jurists,
who felt they had been excluded from the process and that the atrocity
cases, which they had previously been dealing with, were being taken
away from them by the international community. There was particularly
strong resentment that despite the provisions of Regulation 2000/11, the
Presidency of the District Court of Dili had not been consulted.99
97 See Seth Mydan, Modest Beginnings for East Timor’s Justice System, T HE N EW
YORK T IMES (March 4, 2001): “And so the tiny court house in Dili with its ill-prepared
staff, its shortage of translators, its missing records, its lack of a court reporter or copy
machine, its confused schedule and its inadequate budget is for the moment the only
venue for this ravaged country. Prosecutors misplace their indictments, the police misplace
defendants who are free on bail and cases recess in midstream when foreign judges break
for their vacations. No money has been allocated to house and support witnesses from
outside Dili.” Also see Human Rights Watch, Unfinished Business for East Timor, (August
2000), Part III.
98 In particular, the problem of resources has soured the relations between UNTAET
and the jurists. This led to strikes at the districts courts in October 2000: see Strike
Cripples East Timor’s Legal System, ABC News Online (10 October 2000), <http://www.
abc.net.au/news/2000/10/item20001010023441_1.htm>. The strikes were called off after
UNTAET promised to provide long overdue and desperately needed vehicles, furniture,
stationery and other equipment: see UNTAET, Daily Briefing (11 October 2000),
<http://www.un.org/peace/timor/DB/DB111000.htm>.
99 “The Transitional Administrator, after consultation with the Court Presidency, may
decide to establish panels with the expertise to exercise exclusive jurisdiction vested in the
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215
It is no easy matter to investigate, prosecute, defend and try international crimes, particularly if this is to be carried out with due process, full
respect for the rights of the accused and in a way which focuses on those
most responsible. It is unknown if UNTAET seriously considered the costs
that would arise out of having such an ambitious programme to prosecute
atrocities at the District Court of Dili before it proceeded with the adoption
of Regulation 2000/11. In the time between the passing of that regulation
and Regulation 2000/15, no budget was prepared and approved to ensure
the immediate implementation of the Serious Crimes venture. Thus, the
prosecution of Serious Crimes in East Timor has been crippled from the
start, starting life with no resources. For the first few months, its personnel
and equipment were borrowed from the Human Rights and Judicial Affairs
Departments, as well as from CIVPOL.100 Perhaps lessons have already
been learned, for in Cambodia and Sierra Leone, the United Nations has
made it clear that internationalised domestic prosecutions will not start
work until the Secretary-General is satisfied of the availability of funds
for establishment and an initial period of three years. It is also significant
to note that until recently the position of Deputy General Prosecutor for
Serious Crimes has only been filled on a temporary basis and the General
Prosecutor himself has had to head the Serious Crimes Unit in addition to
his responsibility for the prosecution service as a whole.101
The consequences of the lack of support have manifested themselves in
predictable ways:
A serious lack of resources, both human and material, has hampered the investigative work
of the Serious Crimes Investigation Unit. This has prevented investigations being undertaken in connection with the overwhelming majority of crimes against humanity and war
crimes committed during 1999. Because of the delay in or non-existence of investigations,
a number of detainees, who had been held for months in pre-trial detention, have been
released by the General Prosecutor on grounds of insufficient evidence.102
It has also seriously impacted the effectiveness of the enterprise in
addressing the true extent of the criminality that was committed in East
Timor: most crimes are being charged under the less demanding Indonesian Criminal Code, rather than as international crimes. Funding, or rather
the lack of it, has therefore determined prosecutorial strategy. Unlawful
court by section 10.1 of the present regulation”: Regulation 2000/11, supra note 67, s. 10.3
(emphasis added).
100 Human Rights Watch, supra note 97.
101 It was only on 5 July 2001 that Jean-Louise Gilissen from Belgium was sworn in as
Deputy General Prosecutor for Serious Crimes.
102 See Report of the High Commissioner for Human Rights on the Situation of Human
Rights in East Timor, U.N. Doc. E/CN.4/2001/37, para. 13.
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detention arising from inadequate monitoring has been a major problem.103
Investigations of the major incidents are limited to a few (among the
excluded are some of the most notorious massacres) and those that are
being investigated are not able to be investigated to the full extent necessary.104 Charging policy has been inconsistent.105 The historical record
generated by the judicial process will therefore show that many isolated
murders and arsons were committed in East Timor by the East Timorese
upon each other, and only a few were international crimes or had direct
Indonesian involvement. Although the resources situation has improved
since a Security Council mission visited East Timor in November 2000 and
learned at first hand the impossible circumstances of the Serious Crimes
Unit, the struggle continues and the enterprise continues to draw criticism
for failing to bring justice to East Timor.106 It has in fact reached a stage
where the unit’s failures are cited as grounds for the creation of an international tribunal.107 Calls have been made for UNTAET either to boost its
103 See Report of the UNTAET Human Rights Unit (March 2001): “At the end of January
2001, approximately 103 detainees were being held unlawfully because their detention
orders had expired due to the inability of the judiciary to hear applications to extend the
detention orders. Significant efforts have been made by the Serious Crimes Unit to address
this issue and as of 9 March, that number had been reduced to 55.”
104 See The La’o Hamutuk Bulletin (East Timor) (April 2000): “At the same time,
UNTAET officials assert that they do not have the funds to investigate many of the serious
crimes committed in 1999. Scarce resources have forced UNTAET to prioritise five highprofile cases initially, and thus to neglect the important first phase of investigation of other
cases. Indeed, there has been no excavation of a large number of graves from 1999 simply
due to the lack of forensic experts and sufficient morgue space. The 6 September, 1999
massacre at the Catholic church compound in Suai, for example, is not one of the five
initial cases. Local leaders in Suai complained to the visiting Security Council delegation
in November that individuals who participated in the killing spree are living freely among
the local population. UNTAET’s local District Administrator admitted that ‘We’ve had to
release criminals who’ve confessed to rape and murder’ due to a lack of resources for
investigation.”
105 For example, Jose Valente, a member of the militia group Team Alfa, was tried and
convicted by the Special Panel of murder. This incident could be seen as linked to the
acts committed by other members of Team Alfa, shortly to go on trial for crimes against
humanity in the Lospalos Case. The Lospalos case involves members of Team Alfa who
were involved in the same series of incidents in the same area at the same time as Jose
Valente was.
106 See for example, See Report of the Security Council Mission to East Timor and
Indonesia, supra note 62, para. 8; East Timor Still Awaits Justice One Year After UN Call
for International Tribunal, ETAN Press Release (31 January 2001).
107 See Petition for an International Tribunal for East Timor, supra note 66.
EXPERIMENTS IN INTERNATIONAL JUSTICE
217
support for the unit or dismantle it altogether and set up an international
war crimes tribunal.108
The reasons for UNTAET’s inability, or reluctance, to provide adequate
support to the Serious Crimes venture are unclear. They probably include
a genuine lack of understanding by officials from a peacekeeping mission,
new to the challenges of nation-building, of the realities of creating and
maintaining a criminal justice system that complies with international
standards. An inability to appreciate the complexities and costs of investigating and prosecuting international crimes involving the highest levels of
State authority may also have contributed. United Nations peacekeeping
missions are notoriously impoverished, and the organisation’s entrenched
bureaucracy is certainly not designed to respond in a flexible and immediate fashion to the particular needs of judicial institutions. Much also
may stem from UNTAET’s ambiguous attitude toward prosecutions in
East Timor itself, which is suggested by the surprising degree of faith
placed in the Indonesian criminal justice system and its particular support
for the reconciliation process, discussed below. It is of course possible
that UNTAET only expected simple cases of low-level perpetrators to
be processed in East Timor itself; this does not explain why despite the
General Prosecutor’s efforts to build evidence against leaders there are
still ongoing problems with resources or why such a complicated scheme
was adopted in the first place. Whatever the reasons, UNTAET’s recurring
failure to provide adequate support to the venture and to address its many
reported problems lend support to the view that the Serious Crimes venture
exists simply to be used as political leverage in dealing with Indonesia, the
legal mechanism used as a bargaining tool.
2.2. Need for Clarity of Purpose and a Targeted Group
Beyond the obvious prosecution of atrocities, it is unclear what the aim
of the Serious Crimes experiment is meant to be. Is it an end in itself,
in other words, with no greater purpose beyond retributive justice in the
individual case? Or is the purpose to contribute towards reconciliation
in a nation struggling to come to terms with a violent history, with the
courts used as a means of checking impunity, establishing the rule of law
and determining the wider truth of what occurred? It has never been clear
precisely how the exercise is to tie in with the Indonesian criminal process,
and with the truth and reconciliation mechanisms recently adopted in East
Timor, and mooted in Indonesia. Furthermore, the judgments emerging
from the Special Panel indicate that the purpose of the exercise is regarded
108 See Mark Dodd, Call to Support or Scrap Crimes Unit, S YDNEY M ORNING H ERALD
(25 May 2001).
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SUZANNAH LINTON
by its judges as one limited simply to justice in the individual case. For
example, its judgment in the case of Joao Fernandes, convicted for his
role in a major massacre at the Maliana Police Station on September 8,
1999, reveals no placing of the incident within the context of the massacre,
let alone what occurred across East Timor.109 There is no examination
of the massacre as a whole, how and why it happened. To be fair, this
limited approach may have been dictated by the approach of the prosecution which, despite challenge from the bench, insisted on charging this
incident as an ordinary murder rather than as a crime against humanity,
presenting evidence limited to the incident in which Joao Fernandes was
involved.110
Also, it does not appear clear who the target group of Regulation
2000/15 is meant to be, whether the enterprise is designed to bring
leaders and those most responsible to trial or to process the cases of
low level perpetrators who are already detained, leaving the Indonesian
justice system to sort out the leaders. The preamble of the regulation is
not instructive; the legislation directs itself to the establishment of panels
with exclusive jurisdiction over serious criminal offences. This implies
that all perpetrators are to face criminal justice. Certainly this is legally
correct, for international law demands that there must be individual criminal responsibility for such atrocities. Yet, the courts in any nation, let alone
dysfunctional courts in fragile nations like East Timor and Cambodia,
cannot cope with processing all such perpetrators whilst fulfilling their
obligations to deal with current crime. Distasteful as it is, clear lines have
109 General Prosecutor v. Joao Fernandes, Special Panel for Serious Crimes, Case No.
001/00.C.G.2000, Judgment, 25 January 2001. The Serious Crimes Unit has publicly identified the Maliana Police Station massacre as one that is being investigated as a crime
against humanity. KPP-HAM has also examined this as a crime against humanity.
110 According to the judgment, the Special Panel questioned the prosecutor about why
only one murder was charged when the evidence revealed multiple murders and indicated
that crimes against humanity had been perpetrated. The prosecutor acknowledged that in
1999 there had been widespread and systematic attacks against the civilian population and
that the Maliana massacre was part of that. However, the prosecutor “explained that she
charged one murder because there is no evidence of crimes against humanity, the accused
is detained and seek a quick justice” [sic]. See Conviction in East Timor Falls Short of
Calls for Justice, C HRISTIAN S CIENCE M ONITOR (30 January 2001): “In Fernandes’s
case, prosecutors felt they couldn’t yet make a case for the more muscular charge of a
crime against humanity. ‘There’s tons of evidence. But we haven’t gone out and gotten
it yet,’ says one prosecutor. ‘This man participated in one of the worst massacres and all
they come up with is one count of murder,’ fumes [Aniceto Gutteres, director of the East
Timor Human Rights Foundation] ‘The evidence is everywhere. Perhaps they’re not up to
the job.’ ”
EXPERIMENTS IN INTERNATIONAL JUSTICE
219
to be drawn as to who and what gets prosecuted; the alternative would be to
swamp the system with investigations and trials of low-level perpetrators,
making it impossible to pursue the cases of those with the highest levels
of responsibility. Selective prosecution is not unusual and it is taken into
account in the Cambodian Law on Extraordinary Chambers and Sierra
Leone’s Special Court, which direct themselves at the prosecution of those
most responsible, with leaders being the main target.
It is highly unlikely that a focus on individual cases that are, in the
scale of things, less significant, can address the truth of what happened
in East Timor. It can only divert scarce resources. Public statements of
East Timor’s General Prosecutor indicate his office is pursuing leaders
and those most responsible, while recognising its obligation to process
the less significant cases too.111 This is partly a reflection of the complex
relationship with Indonesia, for if those authorities had prosecuted their
military, police and civilian authorities as they had promised to do and in
line with their international obligations, there would be no need for the
Serious Crimes project to focus on investigating the criminality of those
leadership figures. The effect of this is that resources, already severely
limited, are split between pursuing the people that the prosecution would
like to try and processing the cases of the “small fry” that it is stuck with.
2.3. Retroactive Prosecutions
While the Khmer Rouge atrocities occurred over the course of four years,
East Timor’s did not just occur after the 1999 referendum and up to the
handover to UNTAET, but over the course of a twenty-four-year long
occupation. Addressing the atrocities of this era is obviously crucial to
any credible effort to bring justice to East Timor. This problem was clearly
considered by the drafters of Regulation 2000/15, who provided that: “The
panels shall have jurisdiction in respect of crimes committed in East Timor
prior to 25 October 1999 only insofar as the law on which the serious
criminal offence is based is consistent with section 3.1 of UNTAET Regulation No 1999/1 or any other UNTAET Regulation.” Furthermore, section
5.2 of Regulation 2000/11 provides: “Courts shall have jurisdiction in
respect of crimes committed in East Timor prior to 25 October 1999 only
insofar as the law on which the offence is based is consistent with s 3.1 of
111 See transcript of press conference given by the General Prosecutor of East Timor
on 11 December 2000, UNTAET Daily Briefing 11 December 2000, <www.un.org/peace/
etimor/DB/db011200.htm>; also Fact Sheet Update on Serious Crimes and Justice for
Victims of 1999 Violence, UNTAET Press Release, 25 May 2001.
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UNTAET Regulation 1999/1 or any other UNTAET regulation.”112 Thus,
the Serious Crimes enterprise permits prosecution of atrocities committed
during the entire period of occupation from 1975 onwards. This raises the
issue of nullum crimen nulla poena sine lege, entrenched in Regulation
2000/15 itself, for no one can be tried for acts that were not criminal at
the time they were committed. As the Group of Experts noted in relation
to Cambodia, when addressing cases during a particular historical era, the
law to be applied must be that which was then applicable. In relation to
the international crimes identified as being within the jurisdiction of the
Special Panel, these must reflect customary international law at the time of
the commission of the offence.
Regulation 2000/15’s extensive reliance on the ICC Statute has already
been discussed. The ICC Statute incorporates significant recent advances
in international law resulting from the practice and jurisprudence of the ad
hoc tribunals, and developments deriving from the ever-growing influence
of human rights. The ICC will not undertake retroactive prosecutions, its
jurisdiction being limited to crimes that occur after it comes into force. Its
provisions were not designed to deal with historical atrocities. Numerous
aspects of the ICC Statute are innovations on international law applicable
in the 1970s, 1980s and even the 1990s; a fact recognised by the SecretaryGeneral himself when reporting to the Security Council on Sierra Leone’s
Special Court. For example, it has only recently been recognised that violations of common article 3 in an internal armed conflict are prosecutable
as war crimes under international law. This was not the position in the
1970s and 1980s, according to the Group of Experts on Cambodia.113
Thus, article 6.1 would run foul of international standards if used as a
basis for prosecution of such acts committed in that era.114
Earlier in this paper, some problems with prosecuting torture under
Regulation 2000/15 were identified. Prior to the adoption of the ICC
Statute, the customary definition of torture was that of the Torture Convention which specifically requires that the act be “inflicted by or at the
instigation of or with the consent or acquiescence of” a public official
and that there be one of certain identified purposes behind the acts.115 The
112 Section 3.1 provides that the laws of East Timor must be compatible with international
standards. Regulation 2000/15 satisfies such conditions, subject to concerns raised herein
about retroactivity.
113 Group of Experts Report, supra note 5, para. 75.
114 This is simply an illustration of the dangers of wholesale import of the ICC’s provisions, for in reality it is unlikely that the prosecution would categorise the period 1975 to
1999 in East Timor as one of internal armed conflict.
115 See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment G.A. Res. 39/46, 10 Dec. 1984.
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221
Convention’s definition is drawn from the 1975 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, adopted by consensus
by the General Assembly on December 9, 1975.116 Neither definition is
incorporated into Regulation 2000/15, which uses the 1998 ICC Statute’s
definition and a second one that does not mirror the other definitions
of torture. Article 7(2)(e) of the ICC Statute was adopted in accordance
with the dominant view at the Rome Conference that it was necessary to
extend the definition of torture beyond that contained in the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. Although that definition represented customary international
law,117 it was regarded by many delegates at Rome as being too restrictive
because it excludes acts committed by non-State actors, and requires that
there be one of certain identified purposes behind the torture. The new
definition thus encompasses persons who would not otherwise be liable
for torture under customary international law. Prosecutions for torture as
a crime against humanity based on section 5.2(d) arising from the 1970s,
1980s and even the 1990s would therefore seem in conflict with the principle of of legality, in particular nullum crimen sine lege and the prohibition
on retroactive criminal legislation.
While it is closer to the customary international law definition with
its recognition that torture is carried out for certain purposes, like section
5.2(d), section 7.1 omits the requirement that the severe pain or suffering
be inflicted under colour of State authority, that is, it is committed by or
with the acquiescence of a State official. In 1980 customary international
law required that the act be committed “by or at the instigation of a public
official” and “for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he has committed or
is suspected of having committed, or intimidating him or other persons”.
The prosecution of a “private” act of torture committed in 1980 on the
basis of Regulation 2000/15 would be incompatible with international
standards. This legislative failing is somewhat alleviated by the fact that
the criminality could be prosecuted under the Indonesian Criminal Code,
116 G.A. Res. 3452 (XXX).
117 The prevailing view that the definition of the Torture Convention reflects customary
international law is supported by international jurisprudence such as Prosecutor v. Delalic
et al., supra note 30, para. 459 and Prosecutor v. Furundzija (Case No. IT-95-17/1-T),
Judgment, 10 December 1998, para. 111. This has recently been challenged in the Foca
case, see Prosecutor v. Kunarac et al. (Case No. IT-96-23-T and IT-96-23/1-T), Judgment,
22 February 2001, paras. 473–482.
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applicable throughout the occupation, but this would be subject to the
statute of limitations.118
2.4. Complications with Other Mechanisms
The East Timor investigations in Indonesia have had a direct impact
upon the efficacy of the Serious Crimes venture. They have detrimentally
affected its ability to perform its tasks and reveal the importance of a
means of securing cooperation from nations with a clear involvement in the
process or of assured support from the international community in securing
such cooperation. Since the issuing of KPP-HAM’s powerful report on
January 31, 2000, Indonesia’s efforts to prosecute atrocities, in which
such faith was put by the international community, have been agonisingly
slow, degenerating into farce in 2001. In September and October 2000, the
Attorney General of Indonesia named twenty-two persons as suspects.119
However, prosecution was delayed until the adoption of legislation permitting the establishment of human rights courts in which atrocities could be
tried.120 When that was adopted, there was a further delay of five months
before the President issued a decree establishing a special ad hoc court for
East Timor. The long-awaited decree very controversially limited the scope
of the ad hoc court to events after the 1999 referendum, a period when
the atrocities were primarily committed by East Timorese militias rather
than Indonesian forces.121 The appearance of a concerted attempt to block
the East Timor prosecutions was further reinforced when a previously
confidential report from KPP-HAM to the Attorney-General was leaked:
it detailed the extent of the role of the Indonesian armed forces in the East
Timor atrocities and specifically identified the responsibility of the army
commander, General Wiranto.122 Despite this, the Attorney General has
failed to charge General Wiranto. To compound matters further, Indonesian
118 Under section 17.2 of Regulation 2000/15, the time limits of the then applicable law
will apply to prosecutions under the Indonesian Penal Code. If an Indonesian offence
is charged, the accused should in all fairness be entitled to rely on Indonesian defences
applicable at the time. To this end, it is relevant that unlike Regulation 2000/15, Indonesian
law permits a defence of superior orders.
119 See East Timor Massacre Suspects Named, C HRISTIAN S CIENCE M ONITOR (5
September 2000). In October 2000, three more persons were named as suspects, one of
whom was militia leader Eurico Guterres.
120 Law Establishing Human Rights Court (Law No. 26 of 2000), enacted 23 November
2000.
121 See Wahid Decree Rules Out Trial of Key Timor Suspects, AFP (3 May 2001); East
Timor Cases Axed by Jakarta, T HE AGE (3 May 2001).
122 See Hamish McDonald, Architects of Mass Murder, S YDNEY M ORNING H ERALD
(28 April 2001).
EXPERIMENTS IN INTERNATIONAL JUSTICE
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courts handed down exceptionally light sentences on East Timorese militia
members, most notably in the case of the three accused of murdering
UNHCR staff in West Timor.123
The Indonesian “efforts” have hampered those of East Timor in various
ways. With Indonesia clearly backtracking on its pledges and international
obligations, the burden has fallen on the troubled Serious Crimes Unit
to investigate incidents that the Indonesian authorities were meant to be
dealing with. Also, despite the terms of a Memorandum of Understanding
with UNTAET allowing for the transfer of suspects to East Timor and
cooperation in legal, judicial and human rights related matters on 6 April
2000, Indonesia has refused to transfer militia leader Enrico Guterres to
stand trial before the Special Panel on the grounds, first, that he is an
Indonesian national and, second, because its own investigative bodies are
said to be examining allegations against him. The vast majority of perpetrators, both at low and high level, remain in Indonesia (pro-integration East
Timorese have kept their Indonesian nationality), which refuses to transfer
Indonesian nationals to East Timor to stand trial.
Under the Memorandum of Understanding, Serious Crimes officials
visited Indonesia hoping to interview key witnesses and suspects in several
major incidents under investigation. Thanks to an atmosphere of hostility
and unwillingness to cooperate, stoked by the commander of the TNI,
witnesses and suspects refused to be interviewed. Thus, Indonesia has
the power to block the effectiveness of the Serious Crimes enterprise
and to ensure that it is little more than a token gesture. Clearly, given
that the Serious Crimes process is rooted in a Chapter VII resolution of
the Security Council creating UNTAET, much pressure can be brought
to bear upon Indonesia to cooperate. However, with Indonesia reeling
under internal pressures that threaten to disintegrate the nation and lead to
massive violence, the international community continues to tread carefully
in relation to the East Timor prosecutions.
East Timorese society, familiar with the informal mechanisms of traditional justice, is believed to be receptive of the concept of reconciliation
and truth commissions. On June 20, 2001, almost a year after the adoption of Regulation 2000/15, the National Council approved the creation
of a Reception, Truth and Reconciliation Commission (RTR Commission).124 It will have two main functions: to establish the truth regarding
123 Secretary-General Shocked by Light Sentences Handed Down in Indonesian Court
Case Concerning Killing of UNHCR Staff, UN Secretary-General Press Release (4
May 2001), Jonathan Thatcher, International Outrage at Indon Court’s Timor Murder
Sentences, R EUTERS (4 May 2001).
124 East Timor National Council Sets Up Truth Commission to Probe Rights Violations,
UN Department of Public Information (20 June 2001); see UNTAET Regulation 2001/10
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SUZANNAH LINTON
the pattern and scope of human rights violations in the past and to facilitate community acceptance of those who committed lesser crimes. In
order to undertake the first task, the Commission will hold public hearings at which victims speak of their experiences and can conduct its own
investigations. In order to undertake the second task, the Commission will
develop a mechanism for “community-based reconciliation”, involving
granting amnesties to perpetrators of less serious crimes. Suggestions that
the RTR Commission will recruit 300 staff, as much as that of the South
African Truth and Reconciliation Commission,125 contrast strikingly with
the situation of the Serious Crimes project. If true, this must call into
question UNTAET’s commitment to criminal justice and rule of law.126
In a resource starved mission that is drawing to the end of the transitional
period of administration, the creation of two ventures engaged in similar
issues raises the spectre of competition for scarce resources.
A truth and reconciliation mechanism ideally complements judicial
processes, and in its enthusiasm for the former, UNTAET has always
stressed that those who committed Serious Crimes could not receive
amnesties and would have to face justice through the courts.127 Much of
course depends on how a “Serious Crime” is defined. For example, arson
is considered a suitable offence for amnesty under the RTR Commission
project. Arson was one of the most striking features of the violence in
September 1999. With over 90% of East Timor razed to the ground, it
was employed in a devastatingly effective way as part of the widespread
and systematic attack on the civilian population. Viewing each incident in
isolation removes the connection to the wider attack in which the act took
place. Burning a house is arson, but when viewed in the context of what
happened elsewhere in the village and in the next village and across East
Timor, it is a crime against humanity and must not be amnestied.
A clear policy on transitional justice is needed from the very start.
Because the Serious Crimes project is already well underway, it is vitally
important to ensure that this new truth and reconciliation mechanism does
on the Establishment of a Commission for Reception, Truth and Reconciliation in East
Timor, 13 July 2001, UNTAET/REG/2001/10 (Regulation 2001/10).
125 See Charles Scheiner, Estafeta (newsletter of the East Timor Action Network/US,
April 2001).
126 See Mark Dodd, Call to Support or Scrap Crimes Unit, S YDNEY M ORNING H ERALD
(25 May 2001): “[The Director of East Timor’s NGO Forum] said UN support for a South
African-style truth and reconciliation commission had resulted in a contradictory policy of
reconciliation with former militia leaders, many of whom are sought for war crimes.”
127 This is now enshrined in section 4 of Schedule I annexed to Regulation 2001/10:
“In no circumstances shall a serious criminal offence be dealt with in a Community
Reconciliation Process,” supra note 124.
EXPERIMENTS IN INTERNATIONAL JUSTICE
225
not damage ongoing investigations and prosecutions. The two are now to
operate simultaneously with mandates covering the same time period and
there is likely to be overlap and focus on the same incidents. This carries
with it dangers for fair trial, including trial by media, prejudice to the
presumption of innocence, the tainting of evidence and the risk of inconsistent testimony. It is crucial to ensure that the work of the Serious Crimes
venture is not compromised or obstructed in any way. However, while
Regulation 2001/10 grants the General Prosecutor a reasonable input into
the “Community Reconciliation Process”,128 beyond a provision requiring
the RTR Commission to obtain the permission of the Office of the General
Prosecutor before carrying out exhumations, it is silent on how the RTR
Commission is to carry out its tasks without jeopardising the work of the
criminal justice organs.
The RTR Commission has at time of writing yet to start its work. What
does however appear to have impacted upon the project is UNTAET’s push
for reconciliation by wooing militia leaders in West Timor, with a view to
getting the approximately 100,000 refugees there to return to East Timor;
some of these leaders are reportedly key Serious Crimes targets for investigation and prosecution.129 The situation is reminiscent of the international
community’s negotiations with Radovan Karadzic and Slobodan Milosevic
during the Bosnian conflict. Karadzic was eventually excluded from the
Dayton peace negotiations because of Bosniak refusal to deal with him,
and his international pariah status really followed the issuing of an indictment against him by the ICTY, controversial at the time as it impacted upon
peace negotiations. The extent, if at all, to which UNTAET’s cultivation of
certain militia leaders has dictated investigation and prosecution strategy
is unknown, but what is clear is that certain militia leaders involved in the
reconciliation process are able to enter and leave East Timor without fear
128 Section 22.2, contained in the section relating to Community Reconciliation Procedures, supra at note 124, provides that nothing in the regulation will prejudice the authority
of the Serious Crimes institutions. The General Prosecutor will “vet” applications for
amnesty. Provision is made for referral to him at various other stages of the process.
129 See Vanja Tanaja, East Timor: UN Lets Indonesian Military Off the Hook, G REEN
L EFT W EEKLY, Issue 447 (9 May 2001): “Meanwhile, militia leaders and other prominent
opponents of East Timor’s independence ensconced in Indonesian West Timor are feted
and treated like state visitors on UN-sponsored ‘look see’ visits to East Timor, supposedly
designed to encourage the return of Timorese refugees held captive by the militias in West
Timor . . . In the name of reconciliation, the UNTAET Chief of Staff spends much of his
time courting militia leaders such as the de Carvalho brothers whose militias razed Ainaro
town to the ground.” Also, UN in Secret Parleys With East Timor Militia Leaders, T IMES
OF I NDIA (18 November 2000).
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of arrest for Serious Crimes.130 The reason none of these leaders has been
indicted may be explained either by a lack of hard evidence against them
or by UNTAET’s political agenda, which provides an effective immunity
from prosecution in return for engaging in reconciliation negotiations.
2.5. Due Process, Fair Trial and the Rights of the Accused
One of the driving considerations behind internationalised domestic
tribunals is an assumption, never articulated in such blunt terms, that
internationals sent by the United Nations can do the job better than the
locals. The first decision of the international dominated Special Panel of
the District Court of Dili reveals the dangers of such an assumption. On
January 10, 2001, in the course of a pre-trial hearing in the matter of
Julio Fernandes, it was discovered that both prosecution and the Special
Panel had failed to monitor the detentions of twenty persons against whom
indictments had been filed. In some cases, the detention orders had lapsed
but the accused continued to be held in detention. On 12 January 2001,
the Special Panel, without holding hearings and without taking submissions from the defence, attempted to remedy the situation by effecting
a “blanket” extension of the detention of all those detainees. The judges
chose a convoluted means of extending those detentions de facto by issuing
warrants of arrest for all the identified detainees, although all bar one
continued to be held in detention. The twenty accused appealed.
On 14 February 2001, the Court of Appeal (also dominated by internationals) allowed the appeal and found that those who had continued to
be deprived of their liberty after their detention orders had expired had
been illegally detained.131 According to the majority, “one can neither
continue an illegal detention nor legalise it by issuing retroactive continued
preventive detention”. There was unanimity in condemning the Special
Panel’s issue of warrants for the arrest of nineteen accused (already in
detention), and its re-arrest of Julio Fernandes, who had earlier been
130 See Mark Dodd, Timor’s Crime Fighters in Crisis, T HE AGE (1 May 2001): “A
frustrated investigator said that at times he wondered if the unit and the UN transitional
administration were on the same side. ‘They (UNTAET) are holding reconciliation negotiations with militia leaders we want to arrest.’ ” Also, Human Rights Watch, U NFINISHED
B USINESS FOR E AST T IMOR (August 2000) and Joanna Jolly, East Timorese Leaders
Hold Talks, A SSOCIATED P RESS (24 May 2001). From records of indictments filed at the
District Court of Dili compiled by international observers, it does not appear that any of
the militia leaders involved in reconciliation negotiations have been indicted, see Judicial
System Monitoring Programme, available at <www://http.jsmp.minihub.org/>.
131 Julio Fernandes and 19 others v. Prosecutor General, Judgement of the Court of
Appeal of East Timor, Case of Appeal No. 2 of 2001, Majority Decision and Separate
Opinion of Judge Frederick Egonda-Ntende.
EXPERIMENTS IN INTERNATIONAL JUSTICE
227
released when it was realised he had been unlawfully detained. The
majority of the Court of Appeal was scathing about the Special Panel’s
“mental juggling” and misinterpretation of the law. It declared it was
“totally useless and made no sense to issue warrants of arrest against
accused persons already in custody according to indictments filed with the
court”. Judge Egonda-Ntende, dissenting from the majority on this point,
stressed that that it is one of the tenets of a fair hearing that an accused is
present at his trial, or at a proceeding where a matter that affects him or
her is in issue. For him, all the accused were entitled to be heard before the
Special Panel made its decision on detention. The Special Panel’s omnibus
decision was unanimously held to be wrong for not considering the facts of
each case. The majority was also highly critical about the Special Panel’s
mere recital of the law and its failure to evaluate the facts of each case in
light of the legal requirements. Thus, the decision of the Special Panel was
also held to have been made without grounds.
Among the most striking features of this matter are that United Nations
institutions violated fundamental human rights by illegally detaining those
whose orders of detention had expired, and that a panel of judges, with
an international majority, sought to remedy that situation by a convoluted
method of issuing new arrest warrants in order to effect continued detention, without hearing the accused and without consideration of the facts of
each case. This further violated the rights of the twenty persons. The first
situation reveals a failure of close detention monitoring by the international
dominated prosecution and the Special Panel. The second situation is even
more worrying, for as the Court of Appeal judges made clear, the standard
demonstrated by the Special Panel in this case was well below par. Rather
than setting an example and observing internationally recognised human
rights standards pursuant to section 2 of Regulation 1999/1, it further
violated the rights of Julio Fernandes and the others through the application
of flawed legal reasoning and by ignoring due process.
This situation occurred in relation to basic issues and it is fortunate that
there appears to be a robust Court of Appeal, prepared to be trenchantly
critical of the Special Panel and a watchdog of the rights of accused
persons. As the Special Panel’s first decision, it could perhaps be excused
as a “teething problem”. However, when seen with another recent decision,
in the case of Joseph Leki, discussed below, it is clear that there is a very
real need to monitor the work of the Special Panel closely.
Under Regulation 1999/3, East Timorese judges and prosecutors are
appointed by the Transitional Administrator upon non-binding recommendation of the Transitional Judicial Services Commission (“TJSC”), on
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which a majority of East Timorese sit along with UNTAET staff.132 All
the East Timorese judges, prosecutors and defence counsel appointed to
date have been recommended by the TJSC. Regulation 2000/15 requires
international judges to be appointed by the Transitional Administrator
in accordance with existing law on appointments,133 that is after their
applications have been examined by the TJSC who make non-binding
recommendations to the Transitional Administrator. Thus, the TJSC is
meant to be a key player in the appointments process for internationals too,
even though its recommendations can be ignored. This was reinforced by
Regulation 2000/25, under which it is stressed that the TJSC “shall receive
and review individual applications of international legal professionals for
appointment in judicial or prosecutorial offices” and “may conduct an
interview with each candidate”.134
All of UNTAET’s international judges have been appointed to office
directly by the Transitional Administrator at the recommendation of the
Ministry of Judicial Affairs, entirely bypassing the TJSC.135 This is a
procedural flaw that goes to the validity of the appointment itself and
must raise the possibility that the Special Panel’s international judges
and prosecutors may be unlawfully appointed. It is debatable what the
exact consequences flowing from the situation would be, most importantly
for those persons who have been tried and convicted and are serving
their sentences. However, what is abundantly clear is that the integrity
of a process is lost if its judges and prosecutors have been unlawfully
appointed, and exercise powers they do not have to investigate, indict,
prosecute and convict. This must invariably invite cynicism about the effort
to prosecute Serious Crimes in East Timor.
An accused person’s rights, classically set out in article 14 of the
International Covenant on Civil and Political Rights, are statutorily well
protected in East Timor.136 But in practice serious failings have impacted
132 UNTAET Regulation No. 1999/3 on the Establishment of a Transitional Judicial
Service Commission, UNTAET/REG/1999/3.
133 UNTAET Regulation No. 1999/3, UNTAET Regulation 2000/11, supra note 67,
s. 10.3, UNTAET Regulation 2000/15, supra note 74, ss. 22–23.
134 UNTAET Regulation No. 2000/25 on Amending Regulation No. 1999/3, UNTAET/
REG/2000/25.
135 See Frederick Egonda-Ntende, Commonwealth L.J. (forthcoming): “In spite of the
foregoing the subsequent appointments of international judges, up to the time of writing
this article, were not routed through the Transitional Judicial Service Commission, raising
the possibility, of irregular or void appointment of the said international judges.” The author
is an international judge himself, sitting on East Timor’s Court of Appeal.
136 Regulation 2000/30 on Transitional Rules of Criminal Procedure, UNTAET/REG/
2000/30, s. 2.
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229
on due process and fair trial. These have arisen across the criminal justice
system, and are not restricted to the Serious Crimes project. They would
seem to be due to a combination of factors, including the extreme conditions under which personnel have had to operate, poor management of the
system and the weakness of the underlying legal institutions.
The Special Panel’s impartiality has recently been called into doubt by
its findings on Indonesian involvement in the 1999 atrocities. State involvement is central to crimes against humanity and war crimes (in particular
grave breaches of the Geneva Conventions), and because of the nature of
the crime, will usually be present where genocide has been committed.
It is traditionally determined by the legal test propounded by the International Court of Justice in the Nicaragua case.137 More recently, this has
been challenged by the ICTY’s Appeals Chamber in Tadic, which has
developed a separate test.138 Without applying legal standards for determining State involvement and without evidence having been led, in its recent
decision in the case of Joseph Leki, on trial for murder in violation of the
Indonesia Penal Code, the Special Panel concluded that Indonesia planned
and executed the carnage in East Timor, a matter which is hotly contested:
In addition, the plan outlined and executed by Indonesian military forces and its supported
local militia groups was the forced deportation of hundreds of thousands of East Timorese.
These facts do not call for any formal evidence in the light of what even the humblest and
most candid man in the world can assess.139
[The accused] acted to carry out an order from a government who was supporting
militia groups in East Timor as reprisal to the popular consultation who decided by the
independence of this territory.140
Through these findings, the Special Panel has revealed that it has prejudged
certain crucial issues and is therefore not an impartial tribunal.
At time of writing, nine East Timorese act as UNTAET public
defenders, assisted by three internationals. The East Timorese public
defenders are severely lacking in legal background and skills, having had
no prior practical experience and having received very little training or
mentoring since their appointment. They lack experience in the applicable
Indonesian law, even more so the international crimes that are tried by
the Special Panel. They face experienced international prosecutors, the
majority of whom, admittedly, have not had experience in the international crimes arena either. It should be noted that the preamble to the
137 Case Concerning Military and Paramilitary Activities in and Against Nicaragua,
Nicaragua v. United States, [1980] I.C.J. Reports 115.
138 Prosecutor v. Tadic (Case No. IT-94-1-A), Judgment, 15 July 1999, paras. 115–145.
139 Prosecutor v. Joseph Leki, Case No. 05/2000, Judgment of the Special Panel of the
East Timor Transitional Administration, 11 June 2001, p. 7.
140 Ibid., p. 11.
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United Nations Basic Principles on the Role of Lawyers speaks of the
right of an accused to have “adequate legal assistance” at all stages of the
proceedings.141
In a mission where lack of resources is endemic, those granted to
the Public Defenders have been particularly debilitating, even worse than
those granted to the Serious Crimes Unit. This situation reached a head
in September and October 2000 with a complete breakdown in relations
with UNTAET’s Ministry of Judicial Affairs and a nationwide strike by
public defenders (and judges), after which some improvement in conditions emerged. The novice Public Defenders have had to defend persons
accused of the most serious crimes with only minimal resources available to them. This has severely impacted upon their ability to represent
their clients effectively. For example, article 14(3)(e) of the International
Covenant on Civil and Political Rights states that an accused has the right
“to obtain the attendance and examination of witnesses on his behalf under
the same conditions as witnesses against him”. Duress is a major issue in
the East Timorese cases and if proven is a complete defence. Counsel are
generally unable, for lack of resources, to locate witnesses who are able to
verify an accused’s claim that he or she was forced to commit a crime.
According to independent observers, most defendants to date have been
farmers or fishermen lacking in formal education, many of them illiterate.142 There have been particular problems with the availability and
quality of translation facilities (Bahasa Indonesia, Tetum, English and
Portuguese are used in court). While efforts are made to accommodate
the accused’s language of choice during proceedings, several defendants
have had obvious problems understanding questions (although it is unclear
whether this is due to lack of language skills, the translation or simply the
way the questions are phrased). Language and interpretation problems, as
well as the defendants’ lack of understanding of the procedures, make it
extremely difficult to determine whether a defendant is actually answering
the questions from the judges correctly. The greatest difficulties seem to
arise during attempts to ascertain whether the pre-trial rights of defendants have been respected, whether they understand the indictments and
in relation to pleas. The answers, as understood by the judges following
translation, become part of the court record and are relevant to determining
innocence or guilt.
141 Adopted by the 8th United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.
142 See Judicial System Monitoring Programme, Project Proposal, April 2001, available at <http://www.jsmp.minihub.org>. The information in this section is derived from
JSMP’s findings.
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3. SIERRA LEONE
Since 1991, a particularly vicious civil war has been raging in Sierra Leone
between its government and the rebel Revolutionary United Front (RUF).
The winds of peace seemed to have prevailed when the warring parties
signed the Lomé Peace Agreement on 22 May 1999.143 In addition to
a general ceasefire, this granted amnesty to the RUF rebel leader Foday
Sankoh and his followers, appointed him Vice-President and made provision for the establishment of a truth and reconciliation process. When
signing the Lomé Agreement, the Special Representative of the SecretaryGeneral appended a statement that the United Nations understood that
the amnesty provisions of the Agreement would not apply to international crimes of genocide, crimes against humanity, war crimes and other
serious violations of international humanitarian law. Shortly thereafter, the
United Nations Mission in Sierra Leone was established to help implement
the Lomé Agreement and assist in the disarmament, demobilization and
reintegration process.144
However fighting between government and rebel forces resumed in
violation of the agreement. RUF attacks on United Nations peacekeepers,
in particular its abduction of 500 of them, hardened the position of the
international community and renewed the impetus to restore rule of law in
Sierra Leone through the means of criminal justice. Following a request for
assistance in prosecuting those responsible for the atrocities by the Sierra
Leone government, the Security Council requested the Secretary-General
to enter into negotiations with Sierra Leone with a view to concluding an
agreement on the establishment of a special court for the prosecution of
atrocities.145
3.1. Negotiating the Special Court
Sierra Leone’s law does not incorporate international crimes such as
crimes against humanity. After a decade of sustained armed conflict,
the country was not financially able to establish a new system for such
prosecutions and to implement it in accordance with international standards. International assistance was thus required to ensure the correctness
143 Peace Agreement Between The Government of Sierra Leone and the Revolutionary
United Front of Sierra Leone, Lome (Togo, 18 May 1999), U.N. Doc. S/1999/777.
144 U.N. Doc. S/RES/1270 (1999).
145 U.N. Doc. S/RES/1315/2000). See UN to Establish a War Crimes Panel to Hear
Sierra Leone’s Atrocity’s Cases, N EW YORK T IMES (15 August 2000); Council Agrees
on Creation of a War Crimes Tribunal for Sierra Leone, U.N. Press Release (14 August
2000).
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and credibility of any judicial proceedings. The international community
was however reluctant to establish another ad hoc international tribunal
due to the cost implications.
On 4 October 2000, the Secretary-General reported to the Security
Council on his negotiations with the government of Sierra Leone and
appended a draft statute for the court and agreement with Sierra Leone.146
The Security Council accepted the majority of the proposals, but suggested
several changes in relation to the personal jurisdiction of the court, its
size and funding.147 As a result, the current vision for the court is that of
an internationalised domestic tribunal, separate from the Sierra Leonean
criminal justice system, that will be jointly administered by the United
Nations and Sierra Leone. The Statute directs itself toward the prosecution
of those who bear the greatest responsibility; particularly those leaders
who, in committing such crimes, had threatened the establishment and
the implementation of the peace process in Sierra Leone. It is expected
that the court will only try between twenty-five and thirty people, juveniles and adults.148 In a novel development, it will also have jurisdiction
to address “any transgressions by peacekeepers and related personnel in
Sierra Leone” where the sending State is unwilling or genuinely unable to
carry out an investigation. The agreement recognises the primary responsibility of sending States to discipline their peacekeeping troops. Exercise of
the Special Court’s jurisdiction must be authorised by the Security Council
on the proposal of any State.
The Special Court will have jurisdiction over crimes against humanity,
serious violations of common article 3 and Additional Protocol II, serious
violations of international humanitarian law and selected provisions of
Sierra Leonean law. It will be staffed with both local and international
judges and prosecutors. The Court’s temporal jurisdiction will cover
crimes committed since 30 November 1996, the signing of the Abidjan
146 Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone (4 October 2000), U.N. Doc. S/2000/915. The Secretary-General drew the Security
Council’s attention to an alternative which would be the creation of an internationalised
structure within the domestic criminal justice system, the concept that is used in East
Timor.
147 See Letter dated 22 December from the President of the Security Council addressed
to the Secretary-General, U.N. Doc. S/2000/1234; Letter dated 12 January 2001 from
the Secretary-General addressed to the President of the Security Council, U.N. Doc.
S/2001/40; Letter dated 31 January 2001 from the President of the Security Council
addressed to the Secretary-General, U.N. Doc. S/2001/95.
148 UN Says Sierra Leone War Crimes Court Should Be Able to Try Children, AGENCE
F RANCE P RESSE (5 October 2000).
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Accords, the first comprehensive peace agreement between the Sierra
Leone government and the RUF. As the conflict is ongoing, there is no
cut-off date.
The Special Court will have concurrent jurisdiction with and primacy
over Sierra Leonean courts. Under article 8(2), it has the power to request
that any national Sierra Leonean court defer to its jurisdiction at any stage
of proceedings. The obstacle to prosecutions created by the amnesty provisions of the Lomé Peace Accords has been removed; the Sierra Leonean
government has agreed to a provision in the Statute that such amnesties
will not be a bar to prosecution.
This is an internationalised domestic tribunal that will only be established once there is sufficient funding, raised through voluntary contributions. Relying on individual states to contribute towards the cost of
establishing and operating the Special Court is risky and could jeopardise its very creation.149 As a result of compromise reached between
the Security Council and the Secretary-General, who had recommended
that it be funded on the basis of scaled assessments, an agreement will not
be entered into with Sierra Leone establishing the court until the United
Nations Secretariat has obtained sufficient contributions to finance the
establishment of the court and twelve months of its operations, as well
as pledges equal to the anticipated expenses of the following twenty-four
months. The estimated budget of the court over three years was set at
US$114 million, which has now been scaled down to US$16.8 million
for its establishment and first year of operation and US$40 million for the
next two years. At time of writing, it appeared as if the reduced budget for
the establishment and first year of operation would be met and that steps
would be taken to conclude an agreement with the government of Sierra
Leone on the establishment of the Court.
3.2. Structure of the Special Court
Unlike the internationalised domestic tribunals of Cambodia and East
Timor, Sierra Leone’s Special Court will be created by a treaty between
the United Nations and the Sierra Leone government. It is neither “grafted”
onto the existing criminal justice system, part of a peacekeeping mission
nor created as an organ of the United Nations. Rather, it is a “treaty-based
sui generis court of mixed jurisdiction and composition”.150 The most
149 The International Community’s Resolve to End Impunity Must Be Strengthened,
Amnesty International Press Release (24 April 2001).
150 Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone, supra note 146, para. 9.
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immediate and obvious advantage of this is that it avoids problems caused
by reliance on a weak underlying criminal justice system.
Its judiciary will consist of a minimum of eight judges (rising to
a maximum of eleven should a second trial chamber be warranted by
the caseload) sitting as a trial chamber and an appeals court. Article 20
attempts to ensure jurisprudential consistency by requiring the Appeals
Chamber to consider the jurisprudence of the ICTY and ICTR Appeals
Chamber. Each trial chamber consists of a panel of three judges, two
appointed by the Secretary-General, with particular focus on judges from
member states of the Economic Community of West African States and
the Commonwealth; the remaining judge is to be “appointed by the
Government of Sierra Leone”, which does not necessarily mean it will
appoint one of its own nationals. The Appeals Chamber will comprise five
judges, two of whom will be appointed by Sierra Leone and the rest by
the Secretary-General. This is therefore a court controlled by the United
Nations.
The Chief Prosecutor of the Special Court will be an international
appointed by the Secretary-General, while the Sierra Leone government,
in consultation with the United Nations, will appoint a Deputy. Likewise,
an international will be appointed Registrar.
3.3. Substantive Law
Article 2 adopts a definition of crimes against humanity that contains
elements of all of the ICC, ICTY and ICTR definitions, but is at the
same time distinguishable from each. For example, the ICTY and ICTR
statutes both identify “rape” as a crime against humanity. Article 2 of the
Special Court Statute identifies “rape, sexual slavery, enforced prostitution,
forced pregnancy and any other form of sexual violence” as crimes against
humanity. But although the provision resembles the one found in article 7
of the ICC Statute, the term “other forms of sexual violence” need not be
of comparable gravity to those that are listed, nor do the “other inhumane
acts” have to be of similar gravity to the offences listed. The “missing”
crimes such as enforced sterilisation, forcible transfer of population and
other severe deprivation of liberty in violation of fundamental rules of
international law, present in the ICC Statute, could arguably be covered by
the broader language of the Special Court Statute. In line with the current
state of customary international law, crimes against humanity as defined in
the Special Court Statute neither requires a nexus with an armed conflict
nor a discriminatory element.
Mirroring article 4 of the ICTR Statute, article 3 of the Special Court
Statute provides for the prosecution of violations of common article 3 and
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Additional Protocol II.151 The Secretary-General’s Report recognised both
common article 3 and article 4 of Additional Protocol II, particularly since
the establishment of the ICTY and ICTR, as entailing individual criminal
responsibility under customary international law.152 It should be noted that
the listing of offences here is not exhaustive and other crimes relevant to
Sierra Leone, such as enslavement, are not necessarily excluded from the
ambit of article 3.
Article 4 is unusual. Only three crimes felt to be specific to the Sierra
Leone situation are to be prosecuted, and then, as “serious violations of
international humanitarian law” rather than as the routinely used laws
and/or customs of war on which international prosecutions of war crimes
since Nuremberg have been based. These are attacks against the civilian
population as such, or against individual civilians not taking a direct part
in hostilities; attacks against peacekeeping personnel involved in humanitarian assistance or a peacekeeping mission, as long as they are entitled
to the protection given to civilians under the international law of armed
conflict; conscripting or enlisting children under the age of fifteen years
into armed forces or groups or using them to participate actively in
hostilities.
The Secretary-General’s Report goes to some length to justify the inclusion of attacks against peacekeepers and the use of child soldiers, but
does not explain the exclusion of other violations recognised as customary
in nature and which were extensively perpetrated in Sierra Leone, such
as sexual assault in all its manifestations, and enslavement. The concept
of attacks against peacekeepers as an international crime is drawn from
the 1994 Convention on the Safety of UN and Associated Personnel,153
and was first criminalised in article 8(2)(b)(iii) of the ICC Statute. United
Nations peacekeepers in Sierra Leone came under hostile attack on many
occasions and were also kidnapped and held hostage. According to the
Secretary-General, at the time of the adoption of the ICC Statute peacekeepers were already protected by existing customary international law
that prohibits attacks against civilians and persons hors de combat. The
Secretary-General identifies the peacekeeper as a civilian, rather than as
a non-combatant. He regards peacekeepers in Sierra Leone as “a targeted
group within the generally protected group of civilians which because of
its humanitarian or peacekeeping mission deserves special protection . . .
151 Sierra Leone acceded on 21 October 1986.
152 Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone, supra note 146, para. 14.
153 31 I.L.M. 482 (1995).
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[but this] does not imply a more serious crime than civilians in similar
circumstances, and should not entail, therefore, a heavier penalty”.154
There are two aspects to the forced recruitment and use of child
soldiers, a terrible feature of the fighting in Sierra Leone: the unenviable task of working out how best to deal with brutalised children who
brutalise others, and the simpler task of dealing with those who brutalise
children through abduction or forced recruitment and turn them into
killing machines. Article 4(c) turns itself to the latter. One of the celebrated achievements of the ICC Statute is the categorisation of the act of
“[c]onscripting or enlisting under the age of fifteen years into the national
armed forces or using them to participate actively in hostilities” as a
war crime.155 The Secretary-General’s original draft, based on his doubts
about whether this is customarily recognised as a war crime entailing individual criminal responsibility, had required that the child under fifteen be
abducted and forcibly recruited for the specific purpose of active participation in hostilities.156 Excluded as a result of this definition were girls
abducted and enslaved either for the sexual gratification of soldiers, or
kept to perform domestic chores, as well as children who are used for
dangerous but non-combat functions, such as the carrying of weapons. The
Security Council has modified this to conform with what is sees as “the
statement of law existing in 1996 and as currently accepted by the international community”, the ICC Statute’s definition. As a result, article 4(c)
now allows for the prosecution of those who conscript or enlist children
under the age of fifteen years into armed forces or groups or using them to
participate actively in hostilities.
The final group of offences prosecutable at the Special Court are a
selection of crimes under Sierra Leonean law: sexual offences against
young girls drawn from the 1926 Prevention of Cruelty to Children Act
and offences relating to wanton property damage under the 1851 Malicious
Damage Act. Security Council Resolution 1315 recommended resort to
domestic legislation in order to cover situations which are not adequately
regulated in international law.
Individual criminal responsibility under the Special Court’s Statute,
contained in article 6, mirrors the provisions of the ICTY and ICTR
statutes. Also replicated are the provisions on official capacity, command
responsibility, superior orders, non bis in idem and rights of the accused.
154 Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone, supra note 146, para. 16.
155 Rome Statute of the International Criminal Court, supra note 33, art. 8(2)(b)(xvii).
156 Report of the Secretary-General on the Establishment of a Special Court For Sierra
Leone, supra note 146, paras. 17, 18.
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However, in light of the possible resort to Sierra Leonean law, individual criminal responsibility in relation to those crimes is to be determined in accordance with national law. Unlike the Serious Crimes and
Extraordinary Chambers regimes, it has here been correctly recognised
that the applicability of two systems of law requires that the elements of the
crimes be governed by two different bodies of law and that this should also
be reflected in the rules of procedure followed. Hence, although the Rules
of Procedure and Evidence of the ICTR are to apply mutatis mutandis to
proceedings at the Special Court, the judges are empowered to amend or
adapt those rules to the specific needs of the Court and can have resort to
Sierra Leone’s 1965 Criminal Procedure Act.157
In light of the extent of atrocities committed by child soldiers,
the Statute contains numerous provisions relating to juvenile justice.
According to the Secretary-General, the Special Court’s Statute has had to
strike a balance between the clearly expressed desire of the Sierra Leonean
government and civil society for juveniles to be made accountable for
their actions and those of the international and local NGO community who
objected to any kind of judicial accountability for children below eighteen
years of age for fear that such process would place at risk the existing child
soldier rehabilitation programme.158 Several options were considered in
relation to juvenile justice, but the one that has been adopted for the Special
Court grants it jurisdiction over juveniles between fifteen and eighteen
years, and then only in particularly serious cases, where the acts could
include the offender within the ambit of those “most responsible” for the
carnage in Sierra Leone. It is believed that very few juveniles, if any, will
in fact come before the court. The Security Council has stressed that other
institutions, such as the Truth and Reconciliation Commision,159 are better
suited to deal with juveniles.
In the event that juvenile prosecutions are undertaken, article 7 requires
that the matter be handled in a child-specific manner in accordance with
international standards of human rights, in particular, the rights of the
child. The Prosecutor is obliged to ensure that the child rehabilitation
programme is not placed at risk, and that where appropriate, resort should
be had to any alternative truth and reconciliation mechanisms.160 Juveniles
157 Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone, supra note 146, Annex, Special Court Statute, art. 14.
158 Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone, supra note 146, para. 35.
159 The Truth and Reconciliation Commission Act 2000, available at <http://www.sierraleone.org/trc.html>.
160 Report of the Secretary-General on the Establishment of a Special Court for Sierra
Leone, supra note 146, Annex, Special Court Statute, art. 15.
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will not be sentenced to imprisonment if found guilty, but may be subjected
to various measures, such as guidance and supervision orders, community
service orders, counselling and correctional training.161 A special chamber
dealing exclusively with juvenile justice is to be created, with at least
one sitting and one alternate judge having the necessary expertise in this
area;162 it would appear that this chamber may operate under different
procedures which take into consideration the needs of juvenile justice.
Suitably skilled staff will also be recruited in the prosecution.
3.4. Implementation
The Special Court’s Statute has been carefully calibrated to fit the circumstances of Sierra Leone. Unlike Regulation 2000/15 in East Timor, it does
not simply import virtually the whole of the ICC Statute’s substantive
legal provisions. The problems with excessive reliance on the ICC Statute
have already been discussed in relation to East Timor. The ICC Statute
contains some innovations that raise serious issues if they are to be applied
retroactively.
The temporal jurisdiction of the Special Court, from 30 November
1996, is one that only covers part of a conflict that has been raging since
the RUF rebellion began on 23 March 1991. Commencing the jurisdiction
from 1991 was ruled out as creating too heavy burden for the prosecution
and court. According to the Secretary-General, the choice of 30 November
1996 puts the conflict in perspective and ensures that the most serious
crimes committed by all parties fall under the Special Court’s jurisdiction.
Objectively, it is hard to see how the Special Court can “end impunity and
contribute to the process of national reconciliation and to the restoration
and maintenance of peace”163 if it only examines a certain period within
the continuing conflict. What justice is there for the victims of atrocities
committed between 1991 and 1996? Certainly, the jurisdiction must be
workable, but the choice of what to focus on is one that is best made by
the Prosecutor. If the jurisdiction is focused on those with greatest responsibility, including leaders, then the burden on the prosecution and court is
not in fact an oppressive one and the jurisdiction has been unnecessarily
restricted. A truncated scope of temporal jurisdiction may impose grave
evidentiary hurdles to any prosecutor attempting to show the responsibility of those in command. For example, between 15 March 1997 and
the signing of the Lomé Accord in 1999, Foday Sankoh, the leader of
161 Ibid., art. 7.3(f).
162 Ibid., art. 7.3(b).
163 U.N. Doc. S/RES/2000/1315.
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the Revolutionary United Front, was in Nigeria under house arrest and
imprisoned in Sierra Leone.164
Despite the many reports of violations arising during conduct of hostilities since the conflict began, it is surprising that the Special Court has no
provision for prosecutions of the laws and customs of war which cover
violations of a “means and methods” variety. Prosecution under “international humanitarian law” in accordance with international standards would
require that the provision be rooted in humanitarian treaties and principles,
such as those in the Geneva Conventions of 1949, which have evolved
into customary international law. The Secretary-General has identified this
provision as one that turns on the well established principle of distinction
between civilian and combatant. This is not a question of semantics, but of
whether outside of common article 3 (which is prosecutable under article
3), the grave breaches regime of the Geneva Conventions (only prosecutable in an international armed conflict) and the laws and customs of war
(not prosecutable under the Statute), customary international humanitarian
law really does criminalise the identified conduct in the terms set out in
article 4.
Prosecuting peacekeepers through the Special Court “for any transgressions”, an amendment inserted into the Statute by the Security Council,
is an interesting development that raises many technical legal issues.
However, given the focus of this paper, it is more relevant to ask whether
it is appropriate to use the Special Court to try errant peacekeepers. Like
Regulation 2000/15 in East Timor, the legislation does not make it clear
what its overall purpose is to be, whether retributive justice in the individual case, or whether it aims at the more elusive challenges of peace and
reconciliation. Resolution 1315 reveals that the Security Council, despite
its belated wish to use the Court to process rogue peacekeepers, views it
as contributing to the process of national reconciliation and the restoration and maintenance of peace. Seen in conjunction with its categorisation
of the situation as one threatening international peace and security in the
region, Sierra Leone’s bloody history of civil war since 1991, the factors
taken into consideration in the Sierra Leone Report and the general statement of purpose contained in article 1(1) of the Special Court Statute, this
is an institution that is directed at those participants in a particularly brutal
civil war who are most responsible, in order to bring justice and ensure
lasting peace. The prosecution of peacekeepers “for any transgressions”
at the Special Court appears to be an afterthought. It will detract from
the main purpose of the Court and the gravity of the crimes committed
by Sierra Leoneans upon each other. It is instead suggested that if the
164 See Letter to Security Council, Human Rights Watch (1 November 2000).
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SUZANNAH LINTON
sending State is unwilling or genuinely unable to investigate, efforts would
be better employed by obtaining a waiver of the provision in the Status of
Forces Agreement which otherwise prevents Sierra Leone from exercising
jurisdiction over crimes committed by peacekeepers. The Sierra Leonean
courts are the correct venue for peacekeepers who are not tried by their own
States for crimes committed while on peacekeeping operations in Sierra
Leone. To use the Special Court for this purpose would divert limited
resources and be a disservice to the victims of Sierra Leone’s warring
factions.
Much dissatisfaction has been expressed that child soldiers between the
ages of fifteen and eighteen may be prosecuted at the Special Court. There
is concern that this could be a misuse of limited resources.165 Juvenile
justice at the Special Court is likely to be very complex and controversial,
should any cases in fact be pursued. A variety of reasons may account for
the conduct of child soldiers, including fear, mental conditioning, duress,
adult manipulation or the influence of drugs or alcohol. Most child soldiers
in Sierra Leone were abducted or forcibly recruited.
In the absence of specific criteria for establishing juvenile culpability, it
would appear that a fifteen to eighteen year old is to be considered culpable
using the same criteria as are applied to adults. Thus, if the offence is one
which requires a particular criminal intent, the Prosecutor would have to
prove beyond reasonable doubt that the juvenile had the necessary intent as
with an adult. One of the challenges for the Court would be to examine the
content of customary international law pertaining to juvenile justice and
answer the many questions that will arise. Are there any legal presumptions that operate in favour of a juvenile above the age of fifteen? Can
a child soldier be expected to know the difference between a lawful and
unlawful order, and that he or she is not legally required to follow an
unlawful order? Can a juvenile be reasonably expected to have the requisite
knowledge of and intent to participate in a widespread or systematic attack
against the civilian population? Is it correct to assume a juvenile knows
that civilians in an armed conflict are not the enemy and therefore not to
be attacked? Equally problematic would be the situation of a child soldier
who, having been introduced to alcohol by adults, becomes voluntarily
intoxicated and then commits atrocities. Can a juvenile be expected to
consider the consequences of intoxication in the same way as an adult
offender?
The Sierra Leonean legal provisions that are to apply at the Special
Court have been described as unnecessary and containing “regressive
165 Ibid.
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241
assumptions about crimes of sexual violence”.166 Furthermore, it is felt
that:
The inclusion of these provisions discriminates against boys who may have been victims of
sexual assault during the armed conflict in Sierra Leone, as these laws only apply to sexual
assaults on girls. This inclusion also implies that sexual assaults on girls over fourteen is not
a serious crime. Indeed the content of the two provisions clearly shows that the law implies
a sliding scale of seriousness according to the victim’s age, as the offence of abusing a girl
under thirteen is described as a “felony” with a penalty of conviction of up to fifteen years
imprisonment, whereas the offence of abusing a girl between thirteen and fourteen years is
described less seriously as a “misdemeanour” with a much lighter penalty of imprisonment
up to two years only.167
Certainly, these provisions are not progressive. They are however not
necessarily contrary to international human rights law and represent the
law that applied in Sierra Leone during the period within the temporal
jurisdiction of the Special Court. Jurisdiction over crimes that are regulated
by domestic law gives the prosecution flexibility in charging, provides it
with a “safety net” should it not be able to prove that international crimes
were committed and may be more conducive to an expeditious trial. Unfortunately the list is not longer, and it omits many of the crimes widely
committed, such as murder, torture, serious physical assaults and battery
and kidnapping. For these offences, the drafters leave the Prosecutor no
option but to rely on international law alone.
There are said to be two to three hundred persons, including about
fifteen juveniles, already in detention in Sierra Leone.168 Fodeh Sankoh,
the RUF leader, has been held for over a year without charge, and it is
unclear when the Special Court will be established. This is the same situation that East Timor has had to deal with – persons were arrested and held
in detention awaiting the creation of the Special Panel. Sierra Leone and
the United Nations will have to deal with the fact that fundamental human
rights are being seriously violated by the current situation. They may take
guidance from East Timor, where many suspects were released, and the
prosecution was forced to utilise the Indonesian Criminal Code as a means
of ensuring expeditious trial for those who continued to be detained.
166 Sierra Leone: Recommendations on the Draft Statute of the Special Court, Amnesty
International, AFR 51/083/2000, 14 November 2000, p. 1.
167 Ibid., p. 6.
168 Supra note 148.
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4. CONCLUSION
This examination of internationalised domestic prosecutions in Cambodia,
East Timor and Sierra Leone suggests several lessons. There must be no
compromise on due process or judicial impartiality and integrity. Clearly,
United Nations involvement will legitimise any ventures providing tainted
justice and it must therefore reject options that are not feasible and must
not support any enterprises that are unlikely to meet the minimal standards
of justice. And, if things go wrong, the United Nations as a participant or
administrator of the venture must have the determination to address the
shortcomings promptly, demand changes or withdraw from the process
altogether. With its own reputation and that of the principles it represents at
stake, the United Nations cannot afford to be involved in failed experiments
in international justice.
The selection of the internationalised domestic tribunal must be one
that is made following full and informed consideration of other models,
such as an ad hoc international tribunal, domestic prosecutions and truth
and reconciliation options. It should not be simply copied from elsewhere
on the assumption that it must be a “good” model because it is used there,
but be designed with the needs and circumstances of the particular country,
and the wishes of its people, in mind. In this, consultation with experts and
public debate are crucial. So too is consideration of international relations
to the extent that they will impact upon the success of the venture. A
means of ensuring that these courts have adequate methods of securing
the cooperation of third party States, such as devolution of Chapter VII
powers upon them by the Security Council, needs to be developed.
An internationalised tribunal will not work to international standards if
the criminal justice system upon which it is grafted is not solidly rooted in
due process and respect for fundamental rights, or where the independence,
integrity and basic competence of its personnel are compromised. Where
a decision is made to proceed with internationalised domestic tribunals in
such a situation, there must be international control of the process, and
over certain key administrative elements, such as the selection of judges
and the recruitment of prosecutorial staff, the places of confinement of
detainees and convicts and security for court personnel, accused persons
and witnesses.169 In addition to suitably skilled personnel, the host criminal justice system should at least have adequate and secure facilities,
such as courtrooms, correctional facilities, as well as investigative and
prosecutorial offices. If the domestic police/investigative skills are inade169 Group of Experts Report, supra note 5, para. 187.
EXPERIMENTS IN INTERNATIONAL JUSTICE
243
quate, there must be provision enabling skilled international investigators
to conduct investigations.
Much harm is done by rushing through inadequately considered legislation. The legislation needs to accord fully with international standards
of human rights. In view of the particular problems in prosecuting historic
atrocities, great care must be taken to ensure that the legislation complies
with the principle of legality, in particular of nullum crimen nulla poena
sine lege, and the prohibition of retroactive criminal legislation. As not all
the provisions of the ICC Statute reflect existing customary international
law, and even less so customary international law applicable in earlier
eras, drafters must exercise caution in reliance on its provisions. That
being said, there needs to be some way of ensuring there is a uniform
understanding and application of customary international law by the internationalised domestic tribunals, perhaps through requiring the application
of the jurisprudence of the Appeals Chamber of the ICTY and ICTR.
It is also most important that any process involving international
prosecutors must also provide the accused with the option of retaining
international defence counsel. There must be financial provision for such
legal assistance should the accused not have adequate means.
The selected model for an internationalised domestic tribunal must be
realistic and consider whether the existing system is able to support such a
venture. It should not be unduly complicated or cumbersome, and should
not be used to deal with peripheral problems such as those arising from
State failure or inability to discipline peacekeepers. An internationalised
domestic tribunal is not an ad hoc international tribunal and the same
demands cannot be made of it, although there should not be compromises
on fundamental rights of the accused and due process. It must be clear what
the purpose of the enterprise is, whether justice is to be an end in itself or
whether it is part of a nation’s strategy for moving forward towards peace
and reconciliation. In situations of massive violations of human rights,
it will rarely be possible to prosecute every criminal act, and it may be
necessary for legislators to consider identifying a target group, such as
leaders or those bearing greatest responsibility.170 This will clearly colour
prosecutorial strategy.
Additionally, where both national and international crimes fall under
the jurisdiction of an internationalised domestic tribunal, careful consideration must be given as how to reconcile or manage the two systems of
law. Key issues such as defences and rules of procedure should be carefully calibrated to deal with both regimes in accordance with international
standards.
170 Ibid., para. 213.
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The relationship with other transitional justice mechanisms such as
truth and reconciliation commissions must be clear and unambiguous from
the start. The issue of amnesties needs to be widely and publicly discussed,
and the United Nations must be careful not to involve itself in enterprises
that conflict with fundamental principles of international law. Where both
mechanisms exist in a situation, very great care needs to be taken to ensure
that the relationship is worked out in advance and there is no conflict. Truth
and reconciliation commissions must not interfere with an ongoing criminal justice process, for example in the collection of evidence. Criminal
justice is a question of legal obligation, and the politics of reconciliation
must not dictate investigative and prosecutorial strategy.
Competent administration and management of the system is crucial.
This does not mean recruiting “internationals” but rather, competent
personnel with the necessary training, skills and experience.171 International judges and prosecutors must have experience of international law,
in particular international criminal law, international humanitarian law and
international human rights law, and should ideally have had exposure to
international practice.
“Deterrence and prevention of crime, however, need the full commitment of the international community to supporting the quest for justice and
accountability by providing the necessary financial and operational means
to judicial arrangements, whether established under the auspices of the
United Nations or by national governments. Establishing courts without
secure and sustained funding, and without follow-up efforts to rebuild
national criminal justice systems, can do a disservice to victims of largescale violence and undermine their confidence in justice.”172 There must
be a thorough assessment of the costs involved before decisions on models
of justice are taken. Although they are not ad hoc international tribunals,
internationalised prosecutions also have very large financial, material and
personnel requirements. There must be certainty of adequate financial and
material support before legislation is passed, and the enterprise should not
be started until a minimum amount of funding is set aside. However, care
must be taken so that there is not material inequality in the treatment of
the internationalised process and the national criminal justice system, for
that may lead to public resentment. There should ideally be a grace period
171 The inability to find suitable personnel may not necessarily be the fault of the United
Nations, which is often hostage to broken promises by States who earlier pledge to send
them; see Mark Riley, Promises on East Timor Fall Victim to ‘Crisis Syndrome’, S YDNEY
M ORNING H ERALD (26 April 2001).
172 Report of the Secretary-General to the Security Council on the protection of civilians
in armed conflict, UN Doc. S/2001/331.
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245
enabling the institutions to be “up and running” before substantive work
commences. Clearly, lack of resources must not be permitted to shroud
other reasons for malfunction, such as poor leadership, mismanagement or
the absence of a coherent strategy. Where this arises, immediate remedial
steps must be taken.
Careful consideration should also be given as to how best to finance
and administer these courts. It may be more suitable to financially administer them though a special trust fund rather than a peacekeeping mission.
Funding through scaled assessments would assure the finances needed
to establish and run the court, but as has been seen in the case of
Sierra Leone, the Security Council is reluctant to consider anything but
voluntary contributions. It may also be desirable for the enterprise to
have independent reporting lines directly to the Security Council or the
Secretary-General, rather than through a peacekeeping mission as is the
case in East Timor. In any event, there needs to be flexibility in the way that
they are administered, for example, through a streamlined procurement
process, exemptions from competitive bidding and relaxation of the rules
against seconded staff.173
The internationalised domestic tribunal is a creative experiment that
has the potential to bring accountability and justice for massive violations of human rights close to the affected population. With international
assistance, a nation in transition is afforded the very important opportunity
to be directly involved in an internationally sanctioned judicial process
delivering justice to its own people, rather than doing nothing, doing it
alone or sitting on the sidelines watching what an ad hoc international
tribunal does somewhere removed from the locus of the crimes. United
Nations involvement gives the process credibility. National sovereignty is
preserved when there is adequate local involvement in the process. There is
also a tremendous potential for internationalised domestic prosecutions to
disseminate international standards of justice and demonstrate the highest
levels of professionalism to local judges, prosecutors and lawyers, as well
as the general public, therefore playing an important role in capacity
building and strengthening the existing judicial system.
However, the East Timor process reveals that the path to justice through
the internationalised tribunal is a rocky one, for any effort to prosecute
and try international crimes is complex, politically sensitive and requires
substantial resources, as well as competent and experienced personnel who
are able to bring the required expertise and professionalism to such situations. Enterprises born of compromise on fundamental issues, such as the
Extraordinary Chambers project in Cambodia, are unlikely to be able to be
173 Group of Experts Report, supra note 5, para. 213.
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implemented in accordance with international standards. Many problems
can be expected if there is reliance on weak domestic legal institutions that
are not firmly grounded in due process. Failure may cause a fragile society
to reject rule of law and cause irreparable damage to long-term efforts
to achieve peace and reconciliation. New problems will arise if a judicial
enterprise in politically and emotionally charged circumstances does not
satisfy public demands for accountability and international standards of
human rights.
There is certainly tremendous potential for internationalised domestic
tribunals. But East Timor, Cambodia and Sierra Leone show that unless
certain key issues are addressed beforehand and throughout, they will not
just fail to deliver justice to a traumatised nation but may cause yet more
damage.